Petition — Murphy v. Owens-Corning Fiberglas Corp.

Supreme Court brief1980

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MICHAEL RODAK, JR., CLERK

IN THE SUPREME COURT OF THE UNITED STATES

JAMES L. MURPHY

Petitioner

79-1045

Vs. Case No.

OWENS-CORNING FIBERGLAS

CORPORATION,

Respondent

PETITION FOR WRIT OF

CERTIORARI

Marion C. Miller

300 Arrowhead Building

$25 N. 7in

Kansas City, Kansas 66101

Lloyd Burke Bronston

B. David Roselli

6750 W. 75th St., 2B

Overland Park, Kansas 66204

Attorneys for Petitioner

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INDEX

Table of Cases

Table of Statutes

Petition for Writ

of Certiorari

Lower Courts

Questions Presented for Review

Relevant Statutes

Statement of the

Case

Arguments and Author-

ities

Conclusion

Appendix

Memorandum and

Order; Murphy v.

Owens-Corning Fiber-

glas Corp. (U.S. Dist.

Court for the Dist.

of KS)

Majority Opinion

Murphy v. Owens-Corn-

ing Fiberglas Corp.

Tenth Circuit Court

of Appeals

Dissenting Opinion

of Judge Holloway

Denial of Petition

for a Rehearing

(Tenth Circuit Court

of Appeals)

TABLE OF CASES

Brach, Sivalls, and Bryson,

Inc. v. Keystone Steel

Fabrication, Inc., 584

TABLE OF STATUTES

K.S.A. 44-5a01

F.2d 946 (10th Cir.) 35 408, 32-35

° ; K.S.A. 44-5a02 8-11

In Re Millar's Estate (Formerly G.S. 44-5a02) 33.34

185 Kan. 510; 345 P.2d .

1033, (1959) 60 Seventh Amendment to the

U.S. Constitution $4. 45

In Re Robert's Estate ’

192 Kan. 91, 386 P.2d 29 USC. § 1254 2

301 (1963) 60

James Baird Co. v.

Boyd 41 F.2d 578, 582 49

eR? Sey,

Matter of Carothers'

Estate 220 Kan. 437

552 P.2d 1354 (1976) 60

Miller v. Beech Aircraft

Corp., 204 Kan. 184,

460 P.2d 535 at 538

(1960) 58,59

Be RAeUR Cah aie Gea Rs atte cist

Texas and Pacific Ry. Co.

v. Behymer, 189 U.S. 468,

470, 23 $.¢t. 622 49

Walker v. Colgate-

Palmolive-Peet Co. 157

Kan. 170, 139 P.2d 157 46 ,50 ,37

Weeks v. Latter-Day

Saints Hospital 418 F.2d

1035 (10th Cir.) 35 ii

Wright v. American

Home Assurance Co. 488 |

F.2d 361 (10th Cir.) 35

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PETITION FOR WRIT OF

CERTIORARI

Comes now the petitioner and peti-

tions this honorable Court for a Writ of

Certiorari. In accordance with Rule 23 of

the United States Supreme Court, peti-

tioner submits the following:

LOWER COURTS

This petition for writ of Certiorari

is from the decision of the 10th Circuit

Court of Appeals, denying plaintiff's pe-

tition for a rehearing and affirming the

decision of the United States District

Court for the District of Kansas.

The judgment of the Court of Appeals

was entered on the 13th day of July,

1979. The dissenting opinion of Judge

Holloway was filed on the 17th day of

August, 1979. Due to the fact that the

dissenting opinion was filed more than

a month after the decision of the Court,

petitioner timely requested and was grant-

ed an additional 14 days after the filing

of the dissenting opinion to file a peti-

tion for rehearing. Said petition was

timely filed on August 31, 1979, with sug-

gestions for rehearing en banc, and deni-

ed on the Sth day of October, 1979. The

mandate of the Court of Appeals was issu-

ed on the 15th day of October, 1979.

The jurisdiction of the Supreme

Court to review the judgment of the Court

of Appeals is based on 29 USC §1254.

QUESTIONS PRESENTED FOR REVIEW

The questions presented for review

are as follows:

1. Did the Court of Appeals err in

concluding that the presence of ammonia

as a contributing factor to plaintiff's

injury brought this case within the para-

WORT PM: RE | er

See

Le WGI SERIE eI IO RBT ON

meters of the Kansas Workers' Compensa-—

tion Law?

2. Did the Court of Appeals err in

failing to view the evidencé in the light

most favorable to plaintiff and therefore

deny plaintiff his right to a trial by

jury in contravention of the Seventh

Amendment to the Constitution of the

United States?

3. Did the Court of Appeals err in

concluding that proof of compliance with

an industry standard was conclusive as

to proof of due care and that plaintiff

could not prove his case without expert

opinion or proof of violation of an in-

dustry standard?

RELEVANT STATUTES

In suits at common law, where the

value in controversy shall exceed twenty

dollars, the right of trial by jury shall

be preserved, and no fact tried by a jury

shall be otherwise re-examined in any

Court of the United States, than according

to the rules of the common law.

U.S. Const. amend. VII

44-5a01. Occupational disease as in-

jury by accident, when; provisions of

workmen's compensation law applicable.

(a) Where the employer and employee or

workman are subject by law or election

to the provisions of the workmen's compen-

sation law, the disablement or death of

an employee or workman resulting from an

aeiiiieh dae’ disease as hereinafter ideee

and defined shall be treated as the hap-

pening of an injury by secrdude: and the

employee or workman or, in case of death,

his dependents shall be entitled to com-

pensation as provided in the workmen's

a ——

INE PS aT Et EB OF ITE Joe Yampa Serene

compensation law except as hereinafter

otherwise provided; and the practice and

procedure prescribed in such law shall

apply to all proceedings under this act,

except as hereinafter otherwise provided:

Provided, however, That in no case shall

an employer be liable for compensation

under the provisions of this act except

for an occupational disease specified in

section 44-5a02 of the General Statutes

Supplement of 1961 and unless such disease

has resulted from the nature of the em-

ployment in which the employee or workman

was engaged under such employer and was

actually contracted while so engaged,

meaning by “nature of the employment" that

to the occupation in which the employee

or workman was so engaged there is attach-

ed a particular hazard of such disease

that distinguishes it from the usual run

of occupations and is in excess of the

hazard of such disease attending employ-

ment in general; and unless disablement

results within one year or death results

within three (3) years in case of silico-

Sis, or one (1) year in case of any other

occupational disease, after the last in-

jurious exposure to the hazard of such

disease in such employment, or, in case

of death, unless death follows continuous

disability from such disease, commencing

within the period above limited, for which

compensation has been paid or awarded or

timely claim made as provided in this act,

and results within seven (7) years after

such last. exposure. Where payments have

been mnade on account of any disablement

from which death shall thereafter result

Such payments shall be deducted:.from the

amount of liability provided.by law in

Se oF

STR TE A eree conan

case of death. The time limit prescribed

by this section shall not apply in the

case of an employee whose disablement or

death is due to occupational exposure to —

ionizing radiation.

(b) Where an occupational disease

is aggravated by any other disease or in-

firmity, not itself compensable, or where

disability or death from any other cause,

not itself compensable, but is aggravat-

ed, prologned, accelerated or in any wise

contributed to by an occupational dis-

ease, the compensation payable shall be

reduced and limited to such proportion

only of the compensation that would be

payable if the occupational disease were

the sole cause of the disability or death

as such occupational disease, as a causa-

tive factor, bears to all the causes of

such disability or death, such reduction

in compensation to be effected by reduc-

ing the number of weekly or-monthly pay-

ments or the amounts of such payments, as

under the circumstances of the particular

case may be for the best interest of the

claimant or claimants.

an occupational disease shall be payable

to any person whose relationship to the

deceased employee or workman arose subse-

quent to the beginning of the first com-

pensable disability save only to afterborn

children.

(d) The provisions of section 44-570

of the workmen's compensation law shall

appiy in case of an occupational disease.

[L. 1963, ch. 274, §1; June 30. ]

44-5a02 Compensable occupational dis-

eases. The following diseases only shall

be deemed to be compensable occupational

diseases:

1. Poisoning by (a) aluminum; (b)

arsenic; (c) beonzol or its homologues,

or the derivatives of benzol, or the

derivatives of homologues of benzol; (d)

beryllium; (e) cadmium; (f) carbon bisul-

phide or hydrogen sulphides; (g) carbon

monoxide; (h) chromic acid and chromates;

(i) cyanide; (j) formaldeyhyde; (k) fluor-

ine, flouride and hydrofluroic acid; (1)

halogenated hydrocarbons; (m) lead; (n)

manganese; (0) mercury; (p) methanol; (q)

nitroglycerine; (r) oxides of nitrogen;

(s) yellow phosphorus; (t) sulphur; (u)

zinc.

2. Anthrax caused by handling of

wool, hair, bristles, hides or skins.

3. Blisters caused by prlonged or

repeated use of tools or mechanical appli-

ances: Provided, That no compensation

Shall be payable unless the workman shall

promptly, and not later than the end of

the shift during which such blister first

develops, report the same to his employer,

or designated agent of such employer and

submits to such medical treatment therefor

as shall be required and furnished by the

employer.

4. Brucellosis (undulant fever): Pro-

vided, That such disease shall be limited

to those individuals employed in milk

plants, packing plants, butcher shops or

rendering plants.

S. Compressed air illness.

6. Conjunctivitis.

7. Dermatitis, that is, inflamation

or infection of the skin due to oils, cut-

ting compounds or lubricants, dust, li-

quids, fumes, gases, vapors, or solids.

——_

8. Diseased condition caused by ex-

posure to X-rays or radioactive sub-

stances, or exposure to ionizing radia-

tion. "Ionizing radiation" means any pro-

cess involving the use or direct contact

with radium or radioactive substances or

the use of or direct exposure to roentgen

rays (X-rays) or ionizing radiation.

9. Erysipeloid —- swine erysipelas.

10. Nystagmus incurred in underground

work.

11. Synovitis, tenosynovitis or bur-

sitis the result of repeated pressure,

friction or over use.

12. Silicosis, as hereinafter de-

fined. [L. 1959, ch. 222, §1; June 30].

STATEMENT OF THE CASE

A brief statement of the facts of this

)

case is next to impossible due to the

nature of the questions presented. The

main issues in this appeal turns on the

conclusions which can be drawn from the

facts, all as more completely set forth

hereinafter.

This is an action filed in the Dis-

trict Court of Wyandotte County, Kansas,

and subsequently removed to the United

States District Court for the District

of Kansas, seeking damages for personal

injury to an employee as a result of the

employer's negligence in failing to main-

tain a safe place to work. Plaintiff is a

citizen of Kansas and defendant is a

Delaware Corporation with principal

offices in Toledo, Ohio. The amount in

controversy exceeds Ten Thousand Dollars.

Folllowing a five day jury trial, a

verdict was returned for the plaintiff in

the sum of Two Hundred Seventy-five Thou-

sand Dollars ($275,000.00) and judgment

was entered thereon on March a0, 19077.

The trial court, on December 6, 1977,

granted defendant's motion for judgment

notwithstanding the verdict and condi-

tionally granted defendant a new trial.

Plaintiff filed timely notice of appeal

from this ruling. The 10th Circuit Court

of Appeals affirmed the judgment of the

lower court in a two to one decision.

Plaintiff's timely petition for a rehear-

ing was also denied by a split decision.

Appellant applied for work with the

defendant at its Kansas City, Kansas,

plant in 1959. Plaintiff was in perfect

health at the time of his employment.

When plaintiff first applied for work

with defendant, he noticed 'stuff"all

floating through the air inside defend-

ant's plant. The material could readily

be seen when the sun was shining in the

windows. Plaintiff inquired as to the

safety of the material in the air and was

told that it was'dirty, but that it would

not hurt you,

At the end of one weeks employment,

plaintiff became a fabrication processer

on the "burr line", where he worked from

1959 to 1964. On the burr line, plain-

tiff fed rolls of untreated fiberglas

mats into machinery. As the fiberglas

mats would unwind into the burr machine,

glass material would shoot into the air

from the mats. At the point where plain-

tiff worked, gritty material would pile

up on the floor to a considerable depth.

At the end of a work day, plaintiff's

clothes were dirty and dusty to such an

extent that they could not be washed

with the rest of the family's clothes.

ia te ee

= me SS

Plaintiff testified that he never noticed

any ventilation near the burr line.

Plaintiff complained that the fiber-

glas dust made him cough and asked to be

transferred. However, his supervisor in-

formed him that his complaints were just

his imagination and that no harm would

come to him from the glassy material.

Between 1959 and 1965, plaintiff develop-

ed a slight cough and would break out

with a rash from the fiberglas. Dr.

Sifers, the plant physician, diagnosed

him as having sinus drainage with a cough

and sent him to have a chest x-ray.

In 1964, plaintiff finally withdrew

from the burr line and began working as

a handyman wool packer. He would pull fin-

ished fiberglas from the production line

and prepare it for shipping. His work

area was characterized as having dust and

dirt floating around in the air and fiber-

glas piling up and hanging over the beams

of the plant ceiling and "generally every-

thing".

After two months as a wool packer,

plaintiff became an AF operator and work-

ed in the J-3 forehearth area. He was

employed in this area from 1965 through

1967. The J-3 forehearth is a partially

enclosed, 18 ft. by 25 ft. area, where

molten glass is spun into fibers and

sprayed with a chemical binder. The fore-

hearth is an elevated platform bounded on

the west by an enclosed air-conditioned

instrument room, on the north by a blast

furnace, on south by a partition going

half way to the ceiling, on the east by

the forming duct (a pit 8 or 9 ft. below

the forehearth floor with a waist high

barrier along the edge of the pit) and

above by a maze of pipes about 64 ft.

above the floor of the forehearth. Above

ae es

the forming duct, are seven hollow cy-

linders into which the molten glass’ from

the blast furnace runs. Inside the cylin-

ders were spinners, a platinum bushing

with many small outlets through which

molten glass flowed, which when revolved

at high speed changed the molten glass

into fibers of glass. The fibers of glass

were then sprayed with a chemical binder

causing them to clump together. After be-

ing sprayed with the binder, the raw

fiberglas would then fall onto a conveyor

and be transported to the ovens to be

cured. Not all the fiberglas coming out

of the spinner would be sprayed with bind-

er, but instead would fly out into the

forehearth area through the gap between

the bottom of the cylinder and the binder

ring.

Plaintiff's duties included changing

the spinners when they became worn and he

would change as many as 25 to 30 spinners

in the course of an 8 hour shift. In addi-

tion, plaintiff periodically ran a pull

check by pulling out a ladle and checking

how much molten glass flowed through the

spinner in a 5 minute period. Further,

he controlled the amount of binder being

sprayed onto the fiberglas and was requir-

ed to clean up the area and wash the

floor down.

The furnace adjacent to the fore-

hearth area produced a temperature of

2200° F. The temperature of the fore-

hearth area in which plaintiff worked

averaged about 140° F and ranged as high

as 170° F in hot weather. There was glass

and dust particles all over the fore-

hearth area. The conditions were such

that plaintiff was required to clean the

dust off his safety glasses all the time

he was in the forehearth. When cleaning

the area, he would use an air hose to

blow the glass dust off the overhead

‘pipes and it would fall down on his head

as he worked. After each shift, plaintiff

would blow dust out of his nose.

Chemical vapors were present in the

forehearth almost. constantly and would

burn plaintiff's nose, mouth, throat, and

eyes. Because the safety glasses he was

furnished had no rubber moldings, the

fumes would irritate his eyes so much

that he could not see at times. The chemi-

cal odors would be stronger when the wind

outside was from the north or west. The

fans underneath the forming duct drew the

irritating fumes directly across the fore-

hearth were plaintiff worked. The chemi-

cal vapors came from the binder room

which was northwest of the forehearth.

After a typical shift in the fore-

hearth, plaintiff would break out with

a rash on his arms, his eyes would water,

his nose would start to run, he would

blow salt and pepper-like stuff from his

nose, and he would be coughing up sputum

@ontaining dust particles and would be

gagging from cnembeut irritation.

Plaintiff continued to complain

about the conditions in the forehearth

and was once again assured that the dust

fumes were harmless.

The only source of ventilation in

the forehearth, ‘other than the fans under

the forming duct, which merely served to

aggravate his condition due to their pro-

pensity to draw irritating chemical va-

pors directly across his work area, was

a louver in the roof overhead. These lou-

vers were above the maze of pipework in

the forehearth and would be closed in

rain or inclement weather.

The defendant began testing for in-

dustrial health hazards in its plant in

1962 and began making tests specifically

for fiberglas dust in 1964. During the

period that plaintiff worked in the fore-

hearth area, no testing was conducted for

chemical vapors, fiberglas dust, or any

other type of industrial health hazard.

In 1967, plaintiff was removed from

the forehearth area and became a down-

stairs operator. As such, he was respon-

sible for obtaining as much production

as possible from the J-4 line. He would

adjust the saws and the height of the

oven in order to produce the desired pro-

duct. In addition, he was constantly re-

turning to the forehearth area to assist

in replacing spinners and to check the

* quality of raw fiberglas.

oe As a downstairs operator, he was ex-

posed to fiberglas particles from the

dust from the saws and the choppers on

the production line. The dust was suspend-

ed in the air and would accumulate in the

plant requiring continual clean-up. In

addition, the ovens in which the raw

fiberglas was cured would overheat and

cause fiberglas fires. A fire would occur

almost daily, and smoke from the fires

would permeate the plant to such an ex-

tent that plaintiff could not see the

other end of the plant. Plaintiff would

extinguish the oven fires by going

through the thick smoke and opening

valves located next to the smoking oven.

Plaintiff was not provided with a safety

mask when performing this task.

Defendant's safety director testifi-

ed that 10 rows of windows 3 ft. wide and

150 to 200 ft. long were the primary

source of ventilation in the production

area. The windows would be closed because

of snow or inclement weather. Plaintiff,

however, stated that he had never noticed

the windows being open and had heard that

they were welded shut, except for those

that had been broken out following an

oven fire. Plaintiff testified that the

only source of ventilation he was aware

of were the doors in the rear of the

building. In January, 1968, an industrial

hygienist for the defendant noted that

there was a lack of make-up air in the

plant because of the reliance upon the

door openings for ventilation. The only

system for pulling air out of the produc-

tion area were the small exhaust fans

attached to the ovens, vented through the

roof. These were inadequate for removing

smoke from oven fires. Pedestal fans lo-

cated along the production line did not

improve the Situation, but merely served

to keep fiberglas particles suspended in

the air.

During the period of 1967 to 1970,

plaintiff worked at various other jobs in

the plant as the production force was tem-

porarily cut back. After his return to

work in 1970, Murphy returned to the fore-

hearth as a downstairs operator. The

"ammonia compressor" was leaking notic-

able quantities of ammonia vapor into the

atmosphere on the ground floor of the

binder room. The ammonia vapor was suffi-

cient to cause eye irritation indicating

a concentration of 75ppm. No test samp1l-

ing was actually done at this time or at

the next test in September, 1969. Final-

ly, in March, 1970, a sampling for am-

monia vapor was taken. As a result of

this test, the defendant was advised

that the ammonia pump in the binder room

was leaking excessive quantities of ammon-

ia fumes and should be repaired. There

was medical testimony that ammonia has a

strong odor and is capable of irritating

the mucus membranes of the eyes, nose,

throat, and lungs. Ammonia vapors will

cause eyes to water and the nose to run.

Plaintiff stated that the bad odor would

come from the north and west from the di-

rection of the binder room, and that it

would burn his eyes, nose, mouth, and

throat when he worked in the forehearth

of the J and K lines. The doors in the

rear of the plant (used for ventilation)

were near the binder room and the wind

would blow the vapors in the direction of

his work area.

In July, 1968, defendant's special

hazards study found that fiberglas dust

was in excess of the recommended level

and that defendant was advised to take

steps to control fiberglas dust. The

January, 1969, study found that when the

ventilation was down in the recondition-

ing area, the concentration of fiberglas

was in excess of the recommended levels.

The Septembe*, 1969, study found that the

concentration of fiberglas dust was in excess

of the recommended level in two places.

The reconditioning area was again found

to be above the recommended level and the

Saws on the 70 line also produced excess

exposure. The defendant was advised to

enclose the open conveyor line carrying

fiberglas waste across the J and K pro-

duction lines to the reconditioning area.

No tests for fiberglas were taken at the

cutter station where the J-4 production

line saws were located during the period

1967 to 1970.

From 1967. through November, 1969,

plaintiff continued coughing and expector-

ating sputum. In November, 1969, plain-

tiff began having chest pains and report-

ed to defendant's medical center where

he was sent to see a doctor and to be x-

rayed. Plaintiff again received assur-

ances that there was nothing physically

wrong with him and was given no medical

directions. From November, 1969, through

August,1970, plaintiff continued to have

chest pains and grew weaker. By August,

1970, plaintiff was coughing more and

more and had developed shortness of

breath and choking, and generally was un-

able to get a "good breath". Plaintiff's

coughing was so severe that he passed out

in the summer of 1970 and would sit on

the railings of the plant to rest and

catch his breath. His coughing would

abate after being away from the plant

for a five day period.

Plaintiff again went to the plant

physician, Dr. Sifers, in August of 1970,

complaining of severe chest pains. He was

X-rayed again and informed that there was

nothing physically wrong with him. A pul-

monary function machine, a spirometer,

was available to defendant's medical cen-

ter, but plaintiff was never checked on

the machine while employed.

In October of 1970, at age 39, as

plaintiff was preparing to go to work, he

had a severe coughing attack and was un-

able to get his breath to such an extent

that his wife thought he was having a

o-9ee Wen <p

heart attack. At that point, she took

plaintiff to her private physician, Dr.

Evans, who hospitalized him two days

later. Plaintiff's stay in the hospital

lasted three weeks at which time he was

advised by Dr. Evans that if he did not

leave the defendant's plant, he would be

dead and that he should stay away from

foreign particles in order to avoid caus-

ing further damage to his lungs. Plain-

tiff was diagnosed as having chronic ob-

structive lung disease, pulmonary fi-

brosis, pulmonary yeast infection, and

chronic sinusitis.

The recommended guidelines for fiber-

glas exposure contained in defendant's

hygienic reports contained the following

warning:

"Because of wide variation of

individual susceptibilitiy, ex-

posure at or even below the

threshold limit value may not

prevent discomfort, aggravation

of pre-existing condition, or

occupational disease. The TLV

should be used as a guide in

the control of health hazards

and should not be regarded as

fine lines between safe and

dangerous conditions."

Despite this warning, plaintiff's

pattern for testing its facility was hap-

hazard at most. Despite the fact that

plaintiff had made complaints of the work-

ing conditions in the forehearth area,

no test for fiberglas was ever made in

that area. Further, there was no esta-

blished practice governing the frequency

of testing. Defendant's employees stated

testing was done on the basis of com-

plaints, yet despite this criterion, if

you will, no test was ever conducted in

plaintiff's work area. Furthermore, there

was testimony that testing was conducted

only on clean days and defendant's own

surveys on more than one occassion note

that as many as 3 lines were closed on

the day of testing.

Again, despite the above warning and

the studies, defendant never provided

plaintiff with a mask or with individual

monitoring devices despite the fact of

their availability.

ARGUMENTS AND AUTHORITIES

1. DID THE COURT OF APPEALS ERR IN

CONCLUDING THAT THE PRESENCE OF AMMONIA

AS A CONTRIBUTING FACTOR TO PLAINTIFF'S

INJURY BRINGS THIS CASE WITHIN THE PARA-

METERS OF THE KANSAS WORKMEN'S COMPENSA-

TION LAW?

A majority of the 10th Circuit Court

of Appeals concluded that the presence of

ammonia as a contributing factor to plain-

tiff's injury brought this matter within

the parameters of the Kansas Workmen's

Compensation Act and therefore, plaintiff

could not bring an action based on common

law negligence. The evidence is clear

that ammonia vapors were excessive in

defendant's plant. And plaintiff's physi-

cian testified that ammonia vapors were a

contributing factor to his condition.

Plaintiff last worked at defendant's

plant in October, 1970. On that date, the

Kansas Workmen's Compensation Act applied

only to injuries received as a result of

certain "covered chemicals". K.S.A.

44-5a01 (previously quoted at length

herein) provides in relevant part as fol-

lows:

"Provided, however, That in no case

Shall an employer be liable for com-

pensation under the provisions of

this act except for an occupational

er ares trer nes ,

1961

disease specified in section 44-5a02

of the General Statutes Supplement

of 1961 and unless such disease has

resulted from the nature of the em-

ployment in which the employee or

workman was engaged under such em-

ployer and was actually contracted

while so engaged, meaning by 'nature

of employment' that to the occupa-

tion in which the employee or work-

man waS so engaged there is attached

a particular hazard of such disease

that distinguishes it from the usual

run of occupations and is in excess

of the hazard of such disease attend-

ing employment in general;"

(Emphasis added)

§44-5a02 of the General Statute: of

states as follows in relevant part:

"The following diseases only

shall be deemed to be compensable

occupational diseases:

1. Poisoning by (a) aluminum;

(b) arsenic; (c) benzol or its homo-

logues, or the derivatives of benzol,

or the derivatives of homologues of

benzol; (d) beryllium; (e) cadmium;

(f) carbon bisulfphide or hydrogen

sulphides; (g) carbon monoxide; (h)

chromic acid and chromates; (i) cya-

nide; (j) formaldehyde; (k) fluorine,

fluorides, and hydrofloric acid; (1)

halogenated hydrocarbons; (m) lead;

(n) manganese; (0) mercury; (p) meth-

anol; (q) nitroglycerine; (r) oxides

of nitrogen; (s) yellow phosphorus;

(t) sulphur; (u) zinc. ..."

(Emphasis added)

The language of the statute is clear

and unambiguous. There is no need to

resort to rules of statutory construc-

tion. The only occupational diseases

which are compensatory are those enumerat-

ed in G.S.44-5a02. This provision was in

full force at the time of eagle aa

jury. Therefore, the majority was in

error when it concluded that the _ pres-

ence of ammonia would bring this action

under the Workmen's Compensation Act.

2. DID THE COURT OF APPEALS ERR IN

FAILING TO VIEW THE EVIDENCE IN THE LIGHT

MOST FAVORABLE TO PLAINTIFF AND THEREFORE

DENY PLAINTIFF HIS RIGHT TO A TRIAL BY

JURY IN CONTRAVENTION OF THE SEVENTH

AMENDMENT TO THE CONSTITUTION OF THE

UNITED STATES?

The 10th Circuit Court of Appeals

properly stated the standards to be appli-

ed when review is sought of a lower

a ee on a motion for judgment

notwithstanding the verdict. The evidence

must be viewed in the light most favor-

able to the plaintiff and all reasonable

inferences are to be resolved in his

favor. Weeks v. Latter-Day Saints Hos-

pital 418 F.2d, 1035 (10th Cir.). If the

evidence, and the benefit of all infer-

ences which can fairly be drawn is gener-

ally viewed in a light favorable to plain-

tiff and if reasonable men could come to

different conclusions regarding the same,

then the verdict of the jury must be

allowed to stand. Brach, Sivalls, and Bry-

son, Inc. v. Keystone Steel Fabrication,

Inc., 584 F.2d 946 (10th Cir.); Wright

v. American Home Assurance Co. 488 F.2d:

361 (10th Cir.). While the Court of

Appeals purports to apply these stan-

dards,they nonetheless fall short in

their application of the standard to the

facts of this case.

As Judge Holloway stated in his dis-

senting opinion, "There is ample evidence

to sustain the verdict against the defen-

dant...." The majority opinion states,.

"Thus, what does the record show as

to negligence? The plaintiff put on

evidence to show the physical ar-

rangement of the work place. The

machinery and the processes were de-

scribed as were the windows and ven-

tilation devices. There was shown

to be heat and dust in the air.

These facts were not related with

but one exception to any prevailing

standard or expert opinion as to

particulars. No evidence whatever

was introduced by the plaintiff to

show the defendant's methods, prac-

tices, testing, or ventilation de-

parted in any way from industry

standards, or was contrary to expert

opinion. The evidence of defendant

was that this was all in accordance

with practices used by prudent

operators."

CA ir RGR BOS or PC rll i ea Te

Assuming for the moment that plain-

tiff was required to relate the physical

facts to prevailing standards or expert

opinion, it is respectfully submitted

that plaintiff more than met his burden

in this regard.

Defendant's own special hazard

studies disclosed that there was expo-

sure to excess ammonia vapors, that

there was a lack of make-up air in the

plant, and that there was excessive fiber-

Glas in the air at least on one date of

testing. The majority opinion notes that

there was evidence that fiberglas dust

exceeded the threshold limit value at one

or two locations in the plant, but the

majority attaches no significance to this

fact for reason that the threshold limit

values were amended to accept a higher

figure than what the test showed. How-

ever, plaintiff requested the Court of

Appeals to take judicial notice of the

fact that the standard has once again

been modified to its original level and

therefore, the amount of fiberglas pre-

sent was excessive.

Furthermore, regardless of the ulti-

mate value chosen for the threshold limit

value, defendant was aware that the value

was not a fine line between safe and un-

safe conditions. The recommended TLV

standards warn that these levels should

never be exceeded and that exposure at

or below the levels may constitute a

hazard to some individuals. The special

hazards studies conducted by the defen-

dant contained the following warning:

"Because of wide variation of indi-

vidual susceptibility, exposure at

or even below the threshold limit

value may not prevent discomfort,

aggravation of pre-existing condi-

tion or occupational disease. The

TLV should be used as a guide in the

control of health hazards and should

not be regarded as fine lines between

safe and dangerous conditions."

As Justice Holloway points out in

his dissenting opinion, there was evi-

dence to indicate that the testing was

conducted only in areas selected by the

defendant based on observation and com-

plaints and not on an industry standard

or custom. Despite the fact that plain-

tiff had made complaints of the working

conditions in the forehearth area, no

tests of any kind were ever conducted in

this area. There was further evidence

that there was no industry standard

governing the frequency of testing. This

in and of itself is fertile grounds for a

finding of negligence.

The tests were yet deficient in

another respect if the evidence is viewed

in a light most favorable to plaintiff.

There was testimony that testing was con-

ducted only on "clean days" and defen-

dants' own surveys on more than one occa-

sion note that as many as three bee

were closed on the day of testing. A rea-

sonable inference to be drawn from this

fact is that the testing was inherently

inaccurate. The jury could well have

reached the conclusion as it obviously

did, that the frequency and location of

testing was inadequate and that conduct-

ing tests on "clean days" was not pru-

dent conduct. Obviously, if testing is to

be meaningful, it must be conducted under

SS ed

average working conditions.

A- majority of the 10th Circuit Court

of Appeals found that there was evidence

to support the decision of the trial

court. In their opinion, they stated as

follows:

"We will not repeat the analysis of

each allegation as made by the Dis-

trict Court. An examination of the

record supports the view of the trial

court as to each point and it con-

forms to standards for judgment

n.o.v. The record thus shows that

the testing of air quality was exten-

Sive and over an extended period,

reliance was properly placed on eval-

uations of the dangers of certain

pollutants and on the opinions of

experts that fiberglas particles and

the numbers shown to be in the air

could pose no danger."

The above passage iS erroneous in

two respects. First of all, it is not the

duty of an appellate court when reviewing

a lower court decision granting judgment

notwithstanding the verdict to determine

whether there is evidence in the record

to support the view of the trial court.

The standard, as quoted earlier, is

whether reasonable minds might differ on

the conclusions to be drawn from the evi-

dence. The Court of Appeals was required

to view tm evidence in the light most

favorable to plaintiff. It matters not

that there may have been evidence which

would have supported a finding of due

care on the part of the defendant, for

such evidence would not be binding on a

jury. Furthermore, the above statement

to the effect that experts were of the

opinion that the fiberglas particles in

the amount shown could pose no danger is

refuted by the warning contained in defen-

dant's special hazard study. That warning

clearly states that regardless of the

fiberglas content found in the defen-

wees —

dant's plant, some individuals could

react adversely to fiberglas in the air.

The majority opinion states, "We

have again a description of the facts and

circumstances but no proof or inference

that what was being done was insufficient

Or done improperly." The inadequacy of

the testing has already been discussed

and the point need not be elaborated upon

here. Sufficeth to say that defendant's

manner and methods of testing posed a

question for the jury as to their propri-

ety, especially when viewed in light of

the warning contained in defendant's

special hazard studies.

The majority opinion also failed to

give credence to Dr. Evans’ testimony re-

garding the cause of plaintiff's in-.

juries. Judge Holloway in his dissent

amply points out the fallacy in the ma-

jority's reasoning. There was some im-

peachment of the doctor's testimony and

opposing evidence. However, the opposing

testimony was not conclusive on the jury

and they could, if they so desired, dis-

regard it. Furthermore, while plaintiff's

physician testified that he respected the

opinons of various other scholars, the

fact remained that he testified that it

was the combined effect of the conditions

present in the plant which led to plain-

tiff's injuries.

It is submitted to the court that

the actions of the majority of the 10th

Circuit Court of Appeals have denied this

plaintiff his right to a trial by a jury

by substituting their own judgments and

conclusions in its stead. The Seventh

Amendment to the Constitution of the

United States reads as follows:

"In suits at common law, where the

value in controversy shall exceed

twenty dollars, the right of trial

by jury shall be preserved, and no

fact tried by a jury shall be other-

wise re-examined in any Court of the

United States, than according to the ;

rules of the common law."

The trial court twice overruled de-

fendant's motions for directed verdict

prior to submitting this case to the

jury. Then by opinion dated some nine

months after the conclusion of the trial

of this matter, the trial judge entered

judgment for defendant notwithstanding

the verdict. The jury found for the plain-

tiff; the trial judge twice overruled

defendant's motions for a directed ver-

dict when the matter was before him and

his memory was fresh; and at least one

justice of the Court of Appeals found

that the court erred in granting judgment

notwithstanding the verdict. Given these

facts, can the majority of the Court of

Appeals state that reasonable minds can-

not differ as to the conclusion to be

reached from the evidence? It is respect-

fully submitted that if a three judge

panel cannot reach a unanimous decision

regarding the conclusions which may be

drawn from the evidence that ipso facto

reasonable minds may differ and the deci-

sion of the jury must be allowed to stand.

3. DID THE COURT OF ArPEALS ERR IN

CONCLUDING THAT PROOF OF COMPLIANCE WITH

AN INDUSTRY STANDARD WAS CONCLUSIVE AS

TO. PROOF OF NUE CARE AND THAT PLAINTIFF

COULD NOT PROVE HIS CASE WITHOUT EXPERT

OPINON OR PROOF OF VIOLATION OF AN INDUS-

TRY STANDARD?

The majority of the Court of Appeals

would hold this plaintiff to a burden of

proof similar to that found in medical

malpractice actions. The majority of the

court stated that, "The plaintiff failed

in his proof to show that there was any-

thing wrong, within the

negligence stan-

dard with the physical facts and proces-

ses he described by his

other method or devices

a proper solution and

proof as to what others

were doing. This is the

witnesses. No

were advanced as

there was no

in the business

obvious failure

in his case. The picture of conditions in

the plant had to be related to some stan-

dard or measure by expert opinion before

a jury could reach any conclusions as to

negligence." Aside from

ignoring the evi-

dence which the plaintiff produced regard-

ing the accuracy of the tests, the method

of testing, and the warning contained in

the special hazard study,

the court would

require plaintiff to rebutt the defen-

dant's proof of due care by evidence of

deviation from industry standards. The

court contradicts itself by stating that

adherence to a particular industry prac-

tice cannot in and of itself be taken as

proof of due care. However, the court

deviates from the announced rule by re-

quiring plaintiff to prove his case by

expert opinion or violation of an in-

dustry standard.

In Walker v. Colgate-Palmolive- Peet

Co. 157 Kan. 170, 139 P.2d 157, The

Kansas Supreme Court announced the rule

to be followed where the defendant has

attempted to show compliance with an in-

dustry standard as proof of due care.

There the court stated,

".,.. answering question 9, the jury

found defendant furnished such appli-

ances and equipment anc. pursued such

methods of operation as were usually

furnished and maintained by soap man-

ufacturing plants. While this is

sometimes sufficient to relieve li-

ability, it is not the test. The

test is, did defendant use due

care?' the test is reasonable care,

not customary usage.' (Grammer v.

Mid-Continent Petroleum Corp. 71

F.2d 38, 41 citing cases).

In Texas and Pacific Ry. Co. v.

Behymer, 189 U.S. 468, 470, 23 S.Ct.

622, it was said:

‘What usually is done may be evidence

of what ought to be done, but what

ought to be done is fixed by a stan-

dard of reasonable prudence, whether

it ususally is complied with or not.'

In James Baird Co. v. Boyd 41 F.2d

578, 582, it was said:

"There is no need for the citation

of authority to the effect that the

obligation of the master to provide

a safe place for his employees to

work is an absolute obligation and

may not be delegated to those in his

employ; and, while customary methods

may be considered in determing whe-

ther or not this duty has been pro-

perly performed, they do not consti-

tute a controlling test, and it

should be left to the jury to deter-

mine whether under the circumstances

of the case the provisions made by

the employer were such that a person

of ordinary prudence would have made

for the safety of his workmen.' "

The majority of the Court of Appeals

erred in failing to apply the standards

enunciated in Walker, supra. Walker teach-

es that proof of compliance with industry

standards is not conclusive in determin-

ing whether or not the duty to provide

a safe place to work has been performed.

The issue of due care is one properly

left for a jury. The standard to be appli-

ed is whether the employer made such

provisions for the safety of his employ-

ees aS would a person of ordinary pru-

dence under the same circumstances. The

courts of Kansas have never required a

plaintiff to rebutt expert testimony with

other expert testimony in order to meet

his burden of proof in a negligence

action, other than medical malpractice.

Despite the conclusion of the major-

ity of the Court of Appeals, that plain-

ee a, ihn hk i:

tiff needed to prove breach of an indus-

try standard by expert opinion to meet

his burden of proof, it is respectfully

submitted that the plaintiff met this bur-

den in several regards. The reports of

testing done at defendant's plant contain

expert recommendations as to what should

have been done to improve the situation.

It was advised by an industrial hygienist

from Aetna that overhead conveyors should

be closed because fiberglas dust was read-

ily seen floating through the air. Fur-

ther, these same experts recommended on

the two and only times that tests for am-

monia were conducted, that the ammonia

pump which leaked greatly excessive quani-

ties of ammonia vapors be repaired. Mea-

sured by the standard for control of am-

monia under the industry wide danger

level, the exposure to ammonia was at

least 14 times greater than the recogniz-

ed standard. This is a clear showing of a

breach of due care.

The industrial hygiene expert for

the January, 1969, test stated that there

was a lack of fresh make-up air within

the plant. Certainly, the jury would be

entitled to draw the inference implicit

in the above statement that the ventila-

tion within the plant needed improvement.

Defendant's industrial hygiene

expert, Mr. Robinson, testified that the

standard determining the location of

tests within the plant was employee com-

plaints. Admittedly, that standard was

shown to have been breached in the face

of plaintiff's complaints about the condi-

tions existing in the forehearth, when

Mr. Robinson testified that the fore-

hearth had never been tested for either

fiberglas dust or ammonia vapors or for

the effects of the excessive heat. In

Fact. aie forehearth area was never test-

ed at all. Is this not a breach of a

standard of practice as related by the

expert Mr. Robinson?

Dr. Evans, plaintiff's medical ex-

pert, advised that-a respirator should

have been furnished to plaintiff to re-

duce the amount of fioerglas particulates

and smoke from oven fires he was required

to inhale. The need for this appliance

was born out by plaintiff's gasping for

breath, coughing, and expectoration when

working in the forehearth. Furthermore,

the observation of Dr. MacInnis, one of

defendant's medical experts, that plain-

tiff should not be exposed to areas of

dust or fume hazards adds fuel to the

fire. With these facts in mind, the jury

was entitled to reach the conclusion that

defendant failed to exercise due care in

furnishing plaintiff with a respirator.

In July, 1968, the industrial hygien-

ist advised the defendant to take steps

to control the concentration of fiberglas

dust. Fiberglas dust concentration was

in excess of the danger level of 5 mg/m>

on two occasions. Defendant was warned

by the hygienist to control excessive ex-

posure to fiberglas dust. The expert sug-

gested that this could be done by remov-

ing fiberglas which clogged the exhaust

system.

Another standard to determine the

location of testing was where the most

Significant exposure to health hazards

existed. In breach of this standard, the

defendant did not test for fiberglas dust

exposure in the area of the saws and chop-

pers on the J-4 production lines. The

Saws and choppers were one of the most

Significant sources for the creation of

fiberglas dust in the plant. Furthermore,

the saws and choppers on the 70 produc --

tion line produced fiberglas dust in ex-

cess of the danger level, even with the

use of air cleaning devices. The jury was

entitled to infer that the defendant was

negligent in failing to test for fiber-

glas dust on the J-4 saws; that such test-

ing would have shown excessive exposure

just as the testing of the 70 line saws

disclosed and that the defendant failed

to exercise due care to control fiberglas

at both locations. Lack of due care and

prudence is further shown by the defen-

dant's failure to take any remedial steps

whatsoever despite the complaints from

the union safety committee about smoke,

dust, and fumes.

The overhead windows relied upon by

the defendant as the main source of ven-

tilation, were closed at least during in-

clement weather (Plaintiff testified that

he had never noticed the windows being

open). The fact that the plant was com-

pletely clouded with smoke from oven

fires on a daily basis certainly shows

that the oven exhaust fans were inade-

quate. Fans in the forehearth brought nox-

ious, irritating fumes and dust across

the plaintiff causing him to cough and

gasp for breath. Pedestal fans in other

areas served only to stir up fiberglas

dust. These are common sense factors that

need no expert opinion or testimony to be

understood by the jury as being imprudent.

All of these circumstances are co-

gent proof that what was being done was

amar,”

insusficient or done improperly. These

circumstances come squarely from the

standard of negligence announced in

Walker, supra and satisfy plaintiff's bur-

den of proof under Kansas law. It was not

incumbent upon the 10th Circuit Court of

Appeals to weigh the evidence of due care

with the evidence of negligence. Rather,

their sole functsen was to examine the

evidence in a light most favorable to

plaintiff and determine whether reason-

able minds could differ on the conclu-

sions to be drawn. By requiring plaintiff

to prove his case by expert opinion, the

majority, in effect, has given more cre-

dence to the testimony of defendant's ex-

perts than to plaintiff's witnesses, and

as noted in the previous section, failed

to view the evidence in a light favorable

to plaintiff.

Under a similar set of circumstances

the Kansas Supreme Court has stated in

Miller v. Beech Aircraft Corp., 204 Kan.

184, 460 P.2d 535 at 538 (1969), as fol-

lows:

"The record contains lay testimony

of the conditions under which the

plaintiff worked; of lack of proper

ventilation; of long time use of

fiberglass which permeated the atmo-

sphere and worked into plaintiff's

clothes and hair, nearly driving him

crazy with itching and requiring

daily changes of clothes and daily

shampoos; of dust and other particles

so thick that coffee, milk and other

drinks had to be consumed as soon

as poured, else they would be contam-

inated by "spects and spots and dust

and stuff." Lay testimony also point-

ed to a continuing deterioration in

Miller's health which commenced

shortly after his exposure to such

conditions.

"Tt is our opinion that from the evi-

dence, both lay and expert, the jury

might reasonably have drawn the in-

ference that plaintiff's disability

was job-connected. We believe the

trial court erred in deciding as a

matter of law that the plaintiff's

evidence failed to establish a causal

relationship between his employment

and damage to his health." Miller

v. Beech Aircraft Corp., 204 Kan.

184, 460 P.2d 535 at 5356 (1969).

The factual situation presented by

Miller, supra, demonstrates the error in

the decision of the majority. As. Judge

Holloway concluded his dissenting opinion,

"Nevertheless, the jury was entitled to

accept the testimony of the plaintiff and

the doctor who treated him and to draw

its conclusions from their evidence, re-

jecting the testimony of the defendant's

experts. Thus, I cannot agree that judg-

ment notwithstanding the jury's verdict

should have been entered."

The Supreme Court of Kansas has held

in numerous situations regarding the com-

petency of a testator that an expert's

opinion is not binding on the trier of

fact where there is a conflict with lay

testimony. (In re Millar's Estate, 185

Kan. 510, 345 P.2d 1033, (1959); In re

Robert's Estate, 192 Kan. 91, 386 P.2d

301 (1963); Matter of Carothers' Estate,

220 Kan. 437, 552 P.2d 1354 (1976). Under

the law of Kansas, expert testimony is no

more competent than lay testimony and the

Court of Appeals erred when it accorded

it greater status.

CONCLUSION

It is submitted that the foregoing

arguments justify granting plaintiff's

writ of certiorari. The 10th Circuit

Court of Appeals has decided an important

state question in a manner in conflict

with the law of Kansas. The Court of

Appeals, in an opinion "not designated

for routine publication" has announced a

standard heretofore unknown to the bench

and bar of the state, to-wit: That plain-

tiff in a negligence action against his

employer for failure to provide a safe

aa ene

place to work must prove his case by

expert opinion or proof of violation of

Pyne pe standard before he can prevail.

The above and foregoing statement has

never been the ve in the State of Kansas.

It is further contended that a major-

ity of the 10th Circuit Court of Appeals

has so far departed from the accepted and

usual course of judicial proceedings as

to call for the exercise of this court's

power of supervision. The lower court has

failed to view the evidence in a light

most favorable to plaintiff and engaged

in weighing the evidence presented below.

These are errors so blatant that citation

of authorities to support them is unneces-

sary. They have resulted in the violation

of plaintiff's constitutional right toa

trial by jury.

This case cannot be re-tried ina

few written pages and should not be. It

was tried to a jury and should, in the

able court grant petitioner a writ of

name of justice, stand as it was determin-

certiorari.

ed.

It is a very difficult task to recon-

struct a trial heigl a cold record, which

obviously is one reason why verdicts are

not ordinarily disturbed. In actuality,

the evidence showed a wanton disregard

for plaintiff in the failure to test in |

the forehearth area for particles of am-

monia, much less filter the same out of

the atmosphere. This, coupled with the

expert testimony of fiberglas particles

overwhelming the respiratory system, cer-

tainly fits within the parameters of the

negligence standards of the State of

Kansas.

For these and other reasons, includ-

ing the integrity of the judicial system,

we respectfully request that this honor- 63

rence tt de i,

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

JAMES L. MURPHY,

Plaintiff,

CIVIL ACTION

OWENS-CORNING FIBERGLAS Decided

CORPORATION, December 6, 1977

Defendant.

MEMORANDUM AND ORDER

This case is now before the court

for determination of the defendant's mo-

tion for judgment notwithstanding the jury

verdict or, in the alternative, for a new

trial. The jury trial of this action com-

menced on March 21, 1977, and was premised

upon the defendant's alleged negligence

in failing to provide the plaintiff, its

employee, a reasonably safe place in which

to work. After four days of testimony,

at the conclusion of the trial, the jury

A-1l

returned a verdict for the plaintiff in

the amount of $275,000 -- the sum prayed

for in the complaint. The defendant's mo-

tion is baséd upon the arguments that said

verdict is wholly unsupported by substan-

tial competent evidence and that the court

erred in failing to properly instruct the

jury as to the applicable law. The court

has devoted much time and consideration

to these arguments, and has scrutinized

in great detail the transcript of the

trial proceedings and the evidence found

therein. This process of re-examination

has led the court to conclude that the

challenged verdict cannot stand and that

the defendant's motion for judgment not-

withstanding the verdict must, for the

reasons set forth in more detail below,

be sustained.

PEELE GUE: ABO me har .

I. MOTION FOR JUDGMENT NOTWITHSTAND-

ING THE VERDICT.

The standard to be applied in evalua-

ting a motion for judgment n.o.v. is es-

sentially the same as that applied in

evaluating a motion for a directed ver-

dict. See Oldenburg. b. [sic] Clerk, 489

F. 2d 839 (10th Cir. 1974); Taylor v.

National Trailer Convoy, Inc., 433 F.2d

569 (10th Cir. 1970); Federal Rules of

Civil Procedure, Rule 50(b). In consider-

ing a motion for judgment n.o.v., the

trial court is bound to view the evidence

in the light most favorable to the party

against whom the motion is made. E.g.,

Weeks v. Latter-Day Saints Hospital, 418

F. 2d 1035 (10th Cir. 1969); Gulf Insur-

ance Company v. Kolob Corp., 404 F.2d 115

(10th Cir. 1968). The fact that the record

sO viewed contains a "scintilla" of evi-

A-3

dence in support of the challenged verdict

-- or perhaps barely refutes a contention

that there is "no" evidence supporting a

party's case -- presents no legal barrier

to entry of a judgment n.o.v. E.g., Yazzie

v. Sullivent, 561 F.2d 183 (10th Cir.

1977); Swearngin v. Sears Roebuck & Co.,

376 F.2d 637 (10th Cir. 1967). The criti-

cal question is whether the record con-

tains evidence "upon which the jury could

probably find a verdict" for the party

against whom the motion is made. Yazzie,

supra. Thus, while judgment n.o.v. may

not be granted "unless the evidence points

but one way and is susceptible to no rea-

sonable inferences which may sustain the

position of the party against whom the

motion is made," Symons v. Mueller Co.,

493 F.2d 972 (10th Cir. 1974), a motion

for judgment n.o.v. should be sustained

PRS VSO TIT > mam, Ay

where "the evidence and all the infer-

ences to be drawn therefrom are so patent

that minds of reasonable men could not

differ as to the conclusions to be drawn

therefrom" Taylor, 433 F.2G at 571-72.

See also Stiner v. United States, 524 F.2d

640 (10th Cir. 1975); Bertot v. School

District No. 1, Albany County, Wyo., 522

F.2d 1171 (10th Cir. 1975); Wright v.

American Home Assurance Co., 488 F.2d 361

(10th Cir. 1973).

Application of these standards to

the case now before us is appropriately

prefaced with a brief summary of the basic

facts introduced in support of the plain-

tiff's claim. The plaintiff James Murphy

was employed in various capacities at the

defendant's plant in Kansas City, Kansas,

from 1959 to 1970, at which time he was

disabled from further employment due to

chronic obstructive lung disease or pul-

monary fibrosis -- conditions allegedly

resulting from the defendant's negligent

failure to provide a reasonably safe work-

ing environment. The plaintiff's theory

at trial was that the airborne combination

of "chemicals + dust + heat" in the Owens-

Corning plant had proximately caused the

disease and deterioration of his lungs.

He asserted that his pulmonary disability

resulted from negligence, in that the de-

fendant had (1) failed to inspect the air

ir. its plant and to determine the effects

thereof upon its employees, including the

plaintiff; (2) failed to warn or inform

its employees, including the plaintiff,

when it knew or should have known that

the air was harmful to human beings; (3)

failed to remove minute fibrous glass par-

ticles and dust from the general plant

area; (4) failed to minimize harm to its

employees, including the plaintiff; (5)

failed to inform plaintiff of his deter-

iorating condition of health in August,

1970, upon having plaintiff examined by

a physician; and (6) failed to provide

plaintiff with a safe place to ork.

Under Kansas law, there is no ques-

tion but that an employer has a duty not

to expose his employees to perils and dan-

gers against which the employer may guard

by the exercise of reasonable care and

that a part of this duty is to furnish

a reasonably safe place in which to work.

E.g., Taylor v. Hostetler, 186 Kan. 788,

352 P.2d 1042 (1960); Fishburn v. Interna-

tional Harvester Co., 157 Kan. 43, 138

P.2d 471 (1943). It is equally clear, how-

ever, that a master is not an insurer

‘against all injuries which his servants

may suffer in the discharge of their

duties. E.g., Uhlrig v. Shortt, 194 Kan.

68, 397 P.2d 321 (1964); Blackmore v.

Auer, 187 Kan. 434, 357 P.2a 765 (1960).

The Kansas Supreme Court has reiterated

time and time again the legal axiom that

an employer's duty to furnish safe working

conditions is not absolute and that an

employee's recovery for breach thereof

is dependent upon proof of negligence.

In Allen v. Shell Petroleum Corp., 146

Kan. 67, 68 P.2d 651 (1937), the Kansas

Supreme Court formulated the test of em-

ployer negligence as follows:

"The master is not required to

furnish the best, the safest, or the

newest appliances or methods of oper-

ation, nor to adopt extraordinary

or unusual safeguards against risks

and dangers. The limit of his duty

here is to exercise ordinary care

to supply reasonably safe places,

appliances, and methods. The test

of his discharge of this duty is the

‘

exercise of ordinary care to supply

such places, appliances, and methods

as persons of ordinary intelligence

and prudence commonly furnish in like

circumstances."

Further, because under fundamental

principles of tort law the risk of injury

defines the duty to be obeyed, Palsgraf

v. Long Island R.R.Co., 248 N.Y. 339, 162

N.E. 99, 59 A.L.R. 1253 (1928), the

Kansas Supreme Court has held that "the

master is not compelled to foresee and

guard against an accident which reasonable

and prudent men would not expect to hap-

pen, and where an injury to a servant

could not reasonably have been anticipat-

ed, a failure to take precautionary mea-

sures is not negligence on the part of

the master for which he is liable to the

servant." Dodd v. Wilson & Co., Inc., 149

Kan. 605, 88 P.2d 1116 (1939). An employer

is therefore not liable for failing to

anticpate idiosyncratic injury to a parti-

cular employee, arising from the employ-

ee's peculiar physical condition of which

the employer had and could have no notice.

Allen supra. An employer's duty does not

extend to the prevention of or warning

against remote, improbable, and exception-

al occurrences; it is limited to such

perils as reasonably are to be anticipat-

ed.

Finally, in determining the issue

of employer negligence, proof of custom-

ary practices in the relevant industry

is both relevant and highly probative.

Because the duty of care owed by the em-

ployer is that which is exercised by the

average prudent individual in similar cir-

cumstances, and because "what men ordinar-

ily do is ordinarily prudent and careful."

A-10

Blackmore v. Auer, 187 Kan. at 442, 357

P.2d at 772, an employer will generally

not be held liable if he conducts his

business in a manner conforming with the

usage of others engaged in the same busi-—

ness under similar circumstances. Uhlrig

v. Shortt, supra. Evidence of customary

usage in a particular business or industry

is clearly not conclusive of the question

of reasonable care in a given circum-

stance, Walker v. Colgate-Palmolive-Peet

Co. 157 Kan. 170, 139 P.2d 157 (1943),

for the existence of negligence in each

case must depend upon the particular cir-

cumstances surrounding the parties at the

time and place of the occurrences on which

the controversy is based. An employee is

therefore not required to prove, as a ne-

cessary element of his case, that his em-—

ployer either adhered to an unreasonable

A-ll

or imprudent industrywide practice or im-

prudently deviated from commonly accept-

able customary practices. AS a practical

matter, however, evidence of customary

practices within an industry may be among

the most relevant and probative evidence

available, and its absence in a case such

as the one now before the court may

severely impair the employee's ability

to satisfy the relevant burden of proof.

That burden of proof, summarized by the

Kansas Supreme Court, is as follows:

"Negligence is never presumed.

It must be established by proof, but

it may be shown by circumstantial

evidence where the circumstances are

proved and their relation to each

other is such that intelligent, fair-

minded triers of fact may with reason

find that the negligence with which

the defendants are charged has been

established. To meet the burden of

proof on the issue of negligence the

evidence must be substantial and

saree HS

satisfy the obligation imposed upon

a plaintiff in a civil action to

prove such negligence by a preponder-

ance of the evidence." Blackmore v.

Auer, 187 Kan. at 440, 357 P.2d at

At the conclusion of the trial of

this matter, the jury was fully instruct-

ed on the substance of the law stated

above. The muikiein tn be resolved is whe-

ther the jury's verdict for the plaintiff,

in view of the evidence on which it was

based, can be reconciled with the relevant

Kansas case law. Determination of this

question requires us to examine in turn

the various claims of negligence on which

the plaintiff's case was based.

1. The Defendant's Failure to In-

spect The Air In Its Plant and to Deter-

mine the Effects Thereof Upon Its Em-

ployees.

Viewed in the light most favorable

to the plaintiff, the evidence concerning

A-13

the defendant's testing and inspection

procedures during the relevant period

1960 - 1970 was as follows: Commencing

in 1962, the Industrial Hygiene Section

of the Engineering Division of Aetna Life

and Casualty Company conducted annual or

biannual industrial hygiene surveys at

the defendant's plant at places where, due

to the particular manufacturing process

involved, it was felt that there was or

might be a possible occupational health

hazard due to the presence of airborne

chemicals or dust. In determining whether

the presence of such contaminants consti-

tuted a health hazard, the inspectors from

Aetna referred to the so-called "threshold

limit value" (TLV) published by a respect-

ed committee of the American Conference

of Governmental Industrial Hygienists

(ACGIH). The TLV established by the ACGIH

A-14

committee for each particular contaminant

jaa reviewed on a yearly basis and modifi-

ed according to industrial experience and

additional toxocological studies; TLV

standards for humans were generally

established at one tenth of the pollutant

concentration level to which test animals

could be exposed without suffering dis-

cernible harm. Because of this "safety

factor" thus build into the TLV standards,

each TLV represented conditions under

which it was believed that nearly all

workers could be "repeatedly exposed day

after day without adverse effects." The

frequency and nature of the air testing

done by Aetna, as well as the procedures

employed, conformed to both standard in-

dustrial hygiene procedures and procedures

in effect in American industrial plants

at that time. Aetna communicated to the

A-15

defendant the results of each test, to-

gether with its analysis and recommenda-

tions if warranted by the test results.

Aetna's testing was conducted in

those places within the defendant's plant

where it was suspected that potential

health nawedes existed due to proximity

to particular manufacturing processes.

Early tests in 1962 and 1963 were princi-

pally concerned with phenol and formalde-

hyde gases and dust; isolated tests for

airborne fiberglas particles were not con-

ducted because it was generally believed

that such particles were "Sere" Le

even if inhaled, such particles would

cause no miei’ or chemical reaction

in the tissue of the lungs. Beginning in

1964, however, the ACGIH decided "to take

a good look at fiberglas to see if there

was [sic] any possible toxic effect," and

A-16

"Came up with a weight figure that they

felt it might be desirable to at least

look at, at the time." This tenative TLV

_was two milligrams of airborne fiberglas

dust per cubic meter of air. In 1964 or

1965, based upon industrial experience

and experimental human and animal studies,

the ACGIH raised the suggested TLV to 5

milligrams per cubic meter of air. By

1970, the ACGIH threshold limit committee

had determined that "there was no evi-

dence to indicate that fiberglas was a

problem;" rt therefore classified airborne

fiberglas particles as "nuisance" dust

-- one with "a long history of little ad-

verse effect on lungs" and that did not

produce "significant organic disease or

toxic effect when exposures are kept under

reasonable control." Upon reaching this

conclusion, the ACGIH raised the TLV for

A-17

fiberglas as a nuisance dust to 15 milli-

grams per cubic meter of air.

With two exceptions, all tests from

1964 to 1970 indicated that the concentra-

tion of fiberglas particles in the defen-—

dant's plant were well within the TLV in

effect at the time of the inspection and

testing procedures. The two exceptions,

in 1968 and 1969, involved test Situations

in the reconditioning loading area of the

defendant's plant -- an area in which the

plaintiff worked in 1964-65, but not

thereafter. Further, in no case did a test

conducted in the vicinity of the plain-

tiff's work station indicate that concen-

trations of phenol, formaldehyde, carbon

monoxide, or other chemicals or airborne

contaminants exceeded the respective TLV's

established by the ACGIH.

The accuracy of the above-mentioned

industrial hygiene studies was not ques-

A-18

mer nee ewe

tioned at the time of trial. The bulk of

the plaintiff's evidence proceeded along

the line that more extensive testing was

called for in the circumstances. It was

shown that the forehearth area in which

the plaintiff worked from 1965-70 was

never tested for "any and all" chemicals

that might be present, or for fiberglas

particles, because of Aetna's policy to

inspect only those locations in which en-

vironmental health hazards seemed most

probable. There was evidence that at least

some of the defendant's employees felt

that industrial hygiene tests were selec-—

tively conducted only when conditions in

the plant were relatively "clean". There

was pie. evidence that testing proce-

dures might have been conducted more fre-

quently and by arguably more accurate

methods, €.g-, having each employee wear

A-19

air-testing equipment at his work station

throughout the course of his duties.

There would seem to be no question

but that under the Kansas cases cited

above, an employer is obligated to make

a reasonable inmauke to discover latent

or concealed dangers in his place of work.

What constitutes an adequate and proper

inspection or test must depend on the cir-

cumstances of a particular case; an ade-

quate inspection must, however, be such

as a reasonably prudent man in the exer-

cise of reasonable care would deem neces-

sary under the same or similar circum-

stances. The court is convinced that the

evidence in this regard will sustain no

reasonable inference of negligence and

that, to the extent the jury's verdict

may have been based upon such a finding,

it must be set aside. First, the defen-

A-20

PEO Oe TPF me ee -

dant's testing and inspection procedure

was conducted in conformance with a cus-

tomary and generally approved industrywide

practice that was in no way suggested or

shown to be insufficient or negligent.

Second, there was no evidence that more

frequent testing would have disclosed the

existence of any danger to the plaintiff

or any other employees of the defendant.

Third, tiiere was no evidence that testing

at the plaintiff's individual work station

would have revealed the existence of any

occupational health hazard that might be

reasonably anticipated by the defendant.

Fourth, neither was the defendant's 30

years of experience in the fiberglas in-

dustry we the experience of experts in

the field of industrial hygiene such as

to put Owens-Corning on notice as to the

probable existence of an occupational

A-2l

| |

health hazard in any part of the plant

where the plaintiff worked. In these cir-

cumstances, as a matter of law, the defen-

dant could not be charged with a legal

jute to employ unusual or extraordinary

‘tests or to adopt the latest, most improv-

ed, and most extensive methods of testing

and inspection. In the court's opinon,

the minds of reasonable men could not dif-—

fer from the view that the defendant's

testing and inspection procedures were

adequate and reasonable.

2. The Defendant's Failure to warn

and Inform Its Employees, Including the

Plaintiff, When It Knew or Should Have

Known That the Air Was Harmful to Human

Beings.

Analysis of this aspect of the plain-

tiff's case requires us to address two

distinct but interrelated questions: (1)

Was the air in the defendant's plant harm-

ful to human beings? (2) If so, did the

defendant know, or should it have been

known, of the potential danger to which

its employees were exposed?

Even viewing the evidence in the

light most favorable to the plaintiff,

it is readily apparent that the record

is devoid of evidence that the air in the

defendant's plant could be generally de-

scribed as "harmful to human beings." All

tests conducted for formaldehyde, ammonia,

carbon monoxide, and fiberglas dust in

Situations not dissimilar from those in

which the plaintiff worked established

-- aS we noted above -- that the contam-

inant levels were well within the pre-

scribed threshold limitation values in

effect at the time of the tests. The plant

physican, Dr. Earl C. Sifers, testified

A-23

that in twenty years of treating the de-

fendant's employees he had never seen a

case in which the combined inhalation of

chemicals and fiberglas particles caused

pulmonary problems of the kind suffered

by the plaintiff. General experience in

the fiberglas industry, together with the

information based upon experimental human

and animal studies, led the ACGIH during

the period in question to progressively

raise its tenative TLV's for fiberglas

particles and eventually to classify it

aS a nuisance dust producing no signifi-

cant organic disease or toxic effect.

Under no rational view of this overwhelm-

ing evidence could the air in the defen-

dant's plant be deemed "harmful."

The plaintiff's only evidence to the

contrary consisted of testimony by Dr.

William E. Evans, M.D., to the effect that

A-24

nuusiieéinR...-——

(1) inhalation of formaldehyde vapors

causes irritation to the iaabeasi membranes

of the lungs and reduces the ability of

pulmonary cilia to rid the lungs of for-

eign materiais: 03) inhalation of ammonia

vapors has the same physiological effect

upon the lungs; (3) inhalation of carbon

monoxide gas decreases the amount of oxy-

gen carried in the blood stream; (4) heat

tends to dry the mucous membrans in the

respiratory tract and reduces the ability

of the cilia to renee extraneous material

from the lungs; (5) lung tissues often

have an allergic reaction to fiberglas

particles; and (6) the combination of for-

hakdehyde. ammonia, carbon monoxide, heat,

and airborne fiberglas particles may com-

pletely overwhelm the defense mechanisms:

of the body and cause total physical dis-

ability. Dr. Evans' testimony was hardly

probative of the plaintiff's allegation

that the air in the defendant's plant

posed any general danger to human health,

however, for there was no evidentiary cor-

relation between his hypothetical medical

testimony and the conditions actually

existing at the defendant's plant during

the relevant periods of time. Dr. Evans'

testimony failed to indicate what concen-

trobian at the above-mentioned chemicals

would be necessary before their deleter-

ious effects would materialize, and he

did not pretend to testify that the air

in the defendant's plant exceeded such

concentrations. Furthermore, his testimony

openly acknowledged that the air quality

in the defendant's plant was well within

the threshold limit value Sieiadiied for

such citietiniiliaesits by the ACGIH, a body

whose expertise Dr. Evans recognized and

OLLIE OE IY AEN Ne gee «

eo ee

in whose judgment Dr. Evans had confi-

dence. Aside from Dr. Evans' testimony,

there is no evidence in the record that

the air in any part of the defendant's

plant in which the plaintiff was employed

was generally iia? to human health.

Even assuming that some such danger.

were present, the court could by no means

accept the plaintiff's contention or the

jury's possible conclusion that the defen-

dant's failure to warn of such danger was

negligent or otherwise reprehensible: the

record Simply supports no relational

inference that the defendant knew or

should have known of the existence of

such danger. The plaintiff's expert wit-

ness on this subject, Dr. Evans, express-

ly acknowledged that the TLV standard pro-

mulgated by the ACGIH were the work of "a

recognized group of experts" in the field

A-27

of industrial hygiene; that such stan-

dards represented the best judgment

available on the basis of present-day

scientific ability and knowledge; and

that the defendant was "well justified"

in relying on current standards adopted

by that group. In addition to this testi-

mony, the record contains the results of

industrial health surveys that were con-

ducted during the 1960's and early 1970's

and that gave rise to a consensus of med-

ical opinion that employees in the fiber-

glas industry suffered no particular risk

of occupational lung disease in condi-

tions similar to those at the defen-

dant's plant. The plaintiff did not con-

tend that the defendant had actual know-

ledge of the "danger" posed in its plant

‘by the conditions in question. Yet, the

A-28

+ a a

ano Se

overwhelming weight of the scientific evi-

dence of which the defendant might be

charged with constructive knowledge point-

ed to the conclusion that the conditions

in the defendant's plant -- which com-

plied with contemporary industrial hy-

giene standards -- posed no danger to

human health.

In the court's view, the evidence

herein is susceptible of no rational in-

ference that the defendant knew or should

have known of any latent danger to human

beings arising from the quality of the

air in its plant. No reasonable person

could conclude that the defendant's fail-

ure to warn of such "danger" constituted

negligence or other such conduct as should

properly render it liable in the circum-

stances. Accordingly, to the extent that

the jury's verdict may have been based

A-29

upon any such finding, it must be set

aside. Where there is no appearance of

danger, an employer is not required to

caution its employees against unexpected

or siimboldiite perils; its duty to warn

is limited to such dangers as may reason-

ably be anticipated. Under this standard,

a finding for the plaintiff must be viewed

as patently unsupported by the evidence

introduced at trial.

3. The Defendant's Failure to Remove

Minute Fibrous Glass Particles and Dust

from the General Plant Area.

The plaintiff's theory was that his

disability was "really" caused by condi-

tions in the forehearth area of the defen-

dant's plant, where he worked from 1965

to 1967. According to the plaintiff, the

forehearth area was a metal platform ap-

proximately 25 feet long, 18 feet wide,

A-30

Suspended some 15 to 20 feet above floor

level. The north end of the forehearth

area was comprised of a blast furnace from

which molten glass flowed into "spinners"

inside large steel tanks. The crystallized

molten glass was thereafter "hit" with

air, which drove it asi into a ring where

it was sprayed with a liquid chemical

binder. The product thus produced -- un-

cured fiberglas wool -~ was then pulled

down into large pits or holes in the

floor. The west side of the forehearth

platform was bounded by an enclosed, air-

conditioned room housing various instru-—

ments relating to the forehearth produc-

tion processes. The south end of the fore-

hearth area was enclosed only by a parti-

tion over which the operator could look

to the lines running beneath the plat-

form. To the east, the forehearth area

A-3l

was not enclosed; that "wall" consisted

of seven large cylinders suspended at eye

level over the holes in which the fiber-

glas wool was collected. The "ceiling" of

the forehearth area is not enclosed but

had various pipes "running around every-

where." In the forehearth area, according

to the plaintiff, fiberglas wool accumu-

lated all over the pipes and machinery;

chemicals in the air burned his eyes,

nose, and mouth; the heat in the summer

months approximated 140 - 145 degrees

Fahrenheit; and the air was full of dust

and glass particles that were not general-

ly visible but that produced a gritty ir-

ritation to the skin. Forehearth em-

ployees were furnished air hoses with

which to blow "glass and stuff" to the

floor, so that it could be swept up and

discarded, but the plaintiff knew of no

air purification mechanisms or other pre-

cautions taken to ameliorate the dusty

conditions in which he worked. Ventila-—

tion in the forehearth area was, in the

plaintiff's view, inadequate.

Evon B. Austin, Safety Director for

the defendant's plant, testifiea that all

forehearth areas were ventilated by (1)

ten rows of overhead windows 150 to 200

feet long; (2) four "schmigs" -- large

floor-level apparatus that pulled from

the plant's production lines 15,000 cubic

feet of air per minute; and (3) two to

three large "forming fans," each pulling

50,000 cubic feet of air per minute, that

sucked glass into the floor-level pits

described above. Austin also testified

that because water was present in troughs

in the forehearth area and because the

fiberglas processed there was "moist and

sticky" due to spray application of chemi-

cal binders, ther were "hardly any" air-

borne fiberglas particles in the vicinity

of the forehearth. Further, Austin test-

ified that several machines in the defen-

dant's plant were covered with hoods in

order to collect and prevent dust in the

air, and that twice a year the defendant

engaged an: outside firm to clean areas

of the plant that the defendant's employ-

ees could not get to on a regular basis.

An employer's duty to furnish safe

working conditions is not absolute, Allen

v. Shell Petroleum Corp., 146 Kan. at 75,

68 P.2d at 656; it is required merely to

exercise "ordinary care" to supply such

a place of work as persons of ordinary

intelligence and prudence commonly furnish

in like circumstances. Here, any evidence

that the defendant failed to conform with

A-34

commonly accepted standards of good house-

keeping or industrial hygiene is conspic-

uously absent. The same may be said of

proof that significant improvement of the

air quality in the defendant's plant was

technologically possible and economically

feasible during the time period in ques-

tion. The jury here was asked to presume

the existence of negligence from the mere

fact that dust and iibeveios particles

were sometimes visible in the air and

tended to accumulate on pipes and machin-

ery throughout the plant.

Was the defendant negligent in fail-

ing to more nearly purify air in its plant

that it believed or had reason to believe

-- based upon reasonably thorough and fre-

quent inspection and testing within its

plant, the work of respected authorities

in the field of industrial hygiene, and

A-35

the contemporary state of the medical sci-

ences, as well as its experience of some

30 years in the fiberglas industry --

posed no danger to the health or well-

being of its employees? We think not.

First, the court ine wrevivusis rejected

any suggestion that "the defendant knew

or in the exercise of due care should have

known that the physical conditions in its

plant posed a risk of danger to the health

of it employees." Given merely the defen-

dant's reasonable understanding that dust-

related occupational disease among its

employees were improbable at the least,

and that such disease was reversible if

indeed it should occur, any liability of

the defendant cannot be premised upon the

latter's failure to take extraordinary

or unusual air purification steps. Second,

there was no evidence at trial that

A-36

"cleaner" air would have prevented the

onset of the plaintiff's disability. To

the contrary, expert testimony strongly

suggested that this particular plaintiff

-- because of his history of smoking and

various pulmonary problems -- accutely

suffered from exposure to even minute

quantities of dust and other airborne con-

taminants. Further, there was no evidence

that absolute air purity was technolog-

ically and economically possible in the

context of the defendant's manufacturing

process. The plaintiff indeed made no ef-

fort to show that the air purification

measures employed by the defendant were

not the best available at the time.

To sustain the plaintiff's verdict

on the dust control issue, the court would

be compelled to apply a "white glove" test

to a major industrial operation. The

dearth of evidence relating to accepted

standards of industrial housekeeping and

to standards technologically capable of

achievement in the 1960's and early 1970's

requires the court to conlude [sic] that

the jury's verdict on this question must

have been based upon sheer speculation.

Intelligent, fair-minded triers of fact

could not reasonably have found by a pre-

ponderance of the evidence that the defen-

dant was negligent on this score. Accord-

ingly, to the extent the jury's verdict

must have rested on this ground, it must

be held for naught.

4. The Defendant's Failure to Mini-

mize Harm to Its Employees, Including the

Plaintiff.

This claim, the court assumes, speci-

fically refers to the defendant's failure

to institute a program of medical check-

ups of its employees for the purpose of

detecting early symptoms of pulmonary dis-

ease and dysfunction. While ia evidence

relating to this point is limited, it ap-

pears that the defendant's policy was to

rotate employees in "high density areas"

(i.e. the batch house) for mandatory per-

iodic x-ray examinations. No such program

for detecting early signs of respiratory

problems existed for other employees, but

the defendant's policy was to provide free

chest x-rays for any employee at any time.

Except for the periodic checking of "high

density area" employees and the routine

pre-employment examinations given to new

employees, the defendant maintained no

medical programs aimed at the prevention

or early detection of occupational lung

disease; the plant's medical clinic was

principally oriented towards treating both

A-39

occupational and shiceeseidsinaapis tain’ illnes-

ses or accidents at the request of affect-

ed individual employees.

For reasons similar to those discus-

sed earlier, this limited evidence is

clearly incapable of supporting an infer-

ence of negligence. The court finds as

a matter of law that the defendant, acting

as it did upon a reasonable belief that

the working environment in its plant

created no danger of occupational lung

disease, was not legally obligated to con-

duct periodic medical examinations of all

employees for the purpose of detecting

the existence or onset of pulmonary dis-

ease. No evidence introduced at trial

tended to establish that (1) reasonable

and prudent employers in similar situa-

tions conducted or should have conducted

such tests; (2) the tests medically avail-

POTS ew sactaese ae

able to the defendant would have material-—

ly heightened the defendant's awareness

of pulmonary disease as an occupational

hazard of its plant; or (3) such tests

were capable of detecting pulmonary dys-

function at any point in which the disease

was capable of treatment to reverse or

mitigate a particular employee's disabil-

ity. In short, no reasonable person could

conclude that there existed a causal rela-

tionship between the plaintiff's disabil-

ity and the defendant's failure to re-

quire mandatory physical examinations of

its employees. Accordingly, to the extent

that the jury's verdict may have been

based upon the allegation of the defen-

dant's negligent failure to conduct per-

lodic mandatory physical examinations of

its employees, said verdict cannot be al-

lowed to stand.

5. The Defendant's Failure to Inform

Plaintiff of His Deteriorating Condition

of Health in August of 1970, Upon Having

Him Examined By a Physician Which it

Selected.

The court has some difficulty ascer-

taining the factual gist of this allega-

tion. According to the plaintiff, the

"real" cause of his disability was the

working environment in the forehearth area

where he worked "upstairs" from 1965 to

1968 and "downstairs" from 1969 to 1970.

In November, 1969, the plaintiff exper-

ienced severe chest pain. The defendant's

nurse referred him for x-rays. According

to the plaintiff, however, he was given

no treatment and he returned to work on

the assurance that he was "okay." In

August, 1970, the plaintiff experienced .

a recurrence of chest pain and again re-

“——

ported to the defendant's medical clinic

for x-rays. The plaintiff was again as-

sured that nothing was wrong with him,

and several days later he returned to

work. He continued to work until October

10, 1970, when he was hospitalized by his

personal physician, Dr. Evans.

According to the records of Dr.

Sifers, the plant physician, the plaintiff

last visited him on August 10, 1970, at

which time he compalined of "just cough

and cold." The plaintiff had experienced

repeated attacks of bronchitis, persistent

cough, and sinus drainage over the eleven

years (1959-1970) that Dr. Sifers had

treated him, and the doctor did not feel

that hospitalization for further examina-

tion of these symptoms was warranted.

There was no evidence in Dr. Sifers'

records that the plaintiff had ever com-

plained that his respiratory problems

were occupationally related. Dr. Florence

MacInnis, the defendant's pulmonary ex-

pert at the trial of this case, compar-

ed x-rays of the defendant taken in 1969

end 1974 and concluded that the plaintiff-

's pulmonary fibrotic condition had re-

mained virtually unchanged during that

period.

This is not a medical malpractice

case, and in the court's view this par-

ticular allegation has little or no re-

lationship to the question of the defen-

dant's negligence in failing to provide

a reasonably safe place to work. It is

sufficient for our purposes to note that

there was no evidence that the medical

services rendered the plaintiff by the de-

fendant's medical clinic were deficient.

Just how the defendant's "failure to in-

form the plaintiff of his deteriorating

physical condition in August, 1970,"

might have caused or aggravated his pre-

sent disability is a total mystery so far

as the present record is concerned. There

is certainly no suggestion that in

August, 1970, the plaintiff ignored his

own knowledge of "sharp chest pain" and,

relying to his detriment upon the reassur-

ances of Dr. Sifers, forsook the opportun-

ity to obtain an independent medical opin-

ion. Nor is there any evidence that had

the plaintiff been so "informed" in

August, 1970, his hospitalization in

October of that year and his Subsequent

disability could have been avoided. In

Short, there appears to be no causal

nexus between the defendant's failure to

"inform" the plaintiff -- even assuming

that it had a duty to do so -- and the

A-45

fact or the extent of the plaintiff's

disability. A jury verdict to the con-

trary can only be viewed as incompatible

with the facts and the relevant Lins

6. The Defendant's Failure to Provide

the Plaintiff with a Safe Place to Work.

Virtually all of the foregoing claims

and the discussion thereof are subsumed

in the general allegation that the defen-

dant negligently failed to provide the

plaintiff a safe place to work. While the

court's previously stated views need not

be reiterated, two final points merit

elaboration: (1) the extremely tenuous

nature of the evidence that this particu-

lar plaintiff's disability was in fact

caused by the conditions in the defen-

dant's plant; and (2) the overwhelming

evidence that the plaintiff's disability,

even if caused by the conditions in the

defendant's place of work, was idiosyn-

cratic in nature.

The sole suggestion of any causal

relationship between the plaintiff's place

of work and his disability arose in the

testimony of his personal physician, Dr.

Evans. Dr. Evans testified that (1)

acknowledged experts in the fields of

medicine and industrial hygiene concurred

in the views that (a) the chemicals in

the defendant's plant were below those

levels that might present a health hazard

and that (b) fiberglas dust was an inert

material that did not produce signifi-

cant organic disease or toxic effect at

the levels present in the defendant's

plant; (2) such views were worthy of re-

spect and Dr. Evans himself respected

them; and (3) the defendant was entitled,

in operating its plant, to rely upon such

views aS representing the best informa-

tion available from the medical stand-

point. Notwithstanding this testimony,

however, Dr. Evans concluded that the

plaintiff's disability was caused by the

conditions of his employment. This con-

clusion was substantiated exclusively by

(1) Dr. Evans' personal "disagreement"

(based upon undisclosed data) with the

consensus of contemporary medical sci-

entists; and (2) Dr. Evans' observation

that different people have varying physi-

cal reactions to the same stimuli. In the

court's view, Dr. Evans' conclusion that

the plaintiff's disability was occupa-

tional is entitled to no credence or

weight whatsoever. Indeed, this might

truly be characterized as one of those

rare cases in which "the evidence points

but one way and is susceptible to no rea-

A-48

sonable inferences" that would sustain

the plaintiff's burden of proof on the

issue of causation.

The court need not rest its decision

solely on this ground, however, for the

overwhelming weight of the evidence was

that the plaintiff's disability, if it

was indeed related to his employment arose

from his unique and peculiar susceptibil-

ity to harm. In this regard, our case is

indistinguishable from Allen v. Shell

Petroleum Corp. , 146 Kan. 67, 68 P.2d

651 (1937). The Kansas Supreme Court there

noted that the fumes and gases in the de-

fendant's plant were neither inherently

poisonous nor present in dangerous quan-

tities, and that no employee of the de-

fendant -- aside from the plaintiff --

had ever suffered a lung ailment similar

to that claimed by the plaintiff. The

court in Allen rendered a statement of

the law that is equally applicable to the

case before us:. "It was not the duty of

the employer to anticipate a particular

injury to an employee which very likely

resulted by reason of the employee's pe-

culiar physical condition, of which it

had or could have had no notice." Here,

as in Allen, the plaintiff's disability

was neither foreseen nor reasonably fore-

seeable by the defendant, and the court

cannot hold the defendant strictly liable

for its failure to guard against or to

prevent disability that a reasonable and

prudent employer would not expect to hap-

pen. The court must therefore hold that

the finding inherent in the jury's verdict

-- i.e. that the defendant negligently

furnished the plaintiff an unsafe place

in which to work -- is absolutely unsup-

A-50

ported by the overwhelming evidence in

this case.

This case is in many ways analogous

to Robbins v. Alberto-Culver Co.-, 210 Kan.

147, 499 P.2d 1080 (1972), involving the

alleged breach by a hair rinse manufactur-

er of an implied warranty that its product

was suited and fit for the purpose for

which it was sold. The Kansas Supreme

Court, in defining the proper standard

to be followed in ascertaining the manu-

facturer's liability for personal injuries

occasioned by its products to persons who

were allergic or hypersensitive to their

use, made the following comments:

"At the risk of seeming over-simplis-

tic, we believe the concept of fore-

seeability is the key in determining

liability on the part of one who man-

ufactures or sells a fabricated prod-

uct which causes an allergic reaction

in a person who may be susceptible

to it."

The Kansas Supreme Court therefore

found in the implied warranty context that

a manufacturer is not required "to assume

the role of absolute insurer against

physiological idiosyncrasy," or rendered

liable for an isolated instance of per-

sonal injury to "an unusually susceptible

individual," unless such injuries "ought

reasonably to have been foreseen by a per-

son of ordinary care in an appreciable

number of persons in light of the attend-

ing circumstances." The compelling logic

and inherent justice of this rule is

equally applicable in the negligence case

now before the court. To susatin the

jury's verdict absent proof of reasonable

foreseeability of the plaintiff's injuries

would be to render the defendant here an

insurer strictly liable for unexpected

A-52

injuries arising from the Peculiar idio-

Syncrasies and allergic Predispositions

of the plaintiff. Such a result would be

consistent with neither the prevailing

law nor the court's sense of fundamental

justice. See also, Ray v. J.C. Penney Co.

274 F.2d 519 (10th Cir. 1959).

6. Conclusion.

For all the reasons stated above,

the court finds that the defendant is en-

titled to sraedds on its motion for judg-

ment notwithstanding the verdict. This

conclusion does not end the pertinent in-

quiry, however, for under Rule 50(c)(1)

of the Federal Rules of Civil Procedure

the court is also required to rule on the

defendant's motion for a new trial, deter-

mining whether it should be granted if

the judgment notwithstanding the verdict

is thereafter vacated Or reversed. It is

A-53

to that question that the court now turns.

II. MOTION FOR NEW TRIAL.

The defendant argued at various

points in the trial that the plaintiff's

exclusive remedy, if any, was under the

following provisions of the Kansas Work-

men's Compensation Act:

"K.S.A. §44-5a01. Occupational dis-

ease by accident, when; provisions

of workmen's compensation law applic-

able. (a) where the employer and em-

ployee or workman are subject by law

or election to the provisions of the

workmen's compensation law, the dis-

ablement or death of an employee or

workman resulting from an occupation-

al disease as hereinafter listed and

defined shall be treated as the hap-

pening of an injury by accident, and

the employee or workman . . . shall

be entitled to compensation as pro-

vided in the workmen's compensation

law except as hereinafter otherwise

provided....

(b) Where an occupational disease

is aggravated by another disease or

infirmity, not itself compensable,

or where disability or death from

any other cause, not itself compen-

sable, but [sic] is aggravated, pro-

A-54

longed, accelerated or in any wise

contributed to by an occupational

disease, the compensation payable

Shall be reduced and limited to such

Proportion only of the compensation

that would be payable if the occupa-

tional disease were the sole cause

of the disability or death as such

occupational disease, as a causative

factor, bears to all the causes of

such disability or death...."

"K.S.A. §44-5a02. Compensable occupa-

tional diseases. The following dis-

eases only shall be deemed to be com-

pensable occupational diseases:

ot FF Poisoning by ... (g) car-

bon monoxide; ... (j) formaldehyde

Based upon these statutes, as well as the

plaintiff's theory that the synergistic

reaction in the plaintiff's lungs of

"chemicals" (formaldehyde, ammonia, and

carbon monoxide) plus "heat" (from the

blast furniace in the forehearth area)

plus "dust" (airborne fiberglas particles)

had caused the disability complained of,

the defendant requested that the court

instruct the jury as follows: "You, the

A-55

jury, are not permitted to return a ver-

dict in favor of the plaintiff in this

case for any damages, if any, you find

which may have been caused by formaldehyde

or phenol or carbon monoxide." The court

rejected the proffered instruction on two

grounds: first, the defendant had failed

to sufficiently show that the plaintiff's

disability was caused by "poisoning" as

that term was used in K.S.A. §44-5a02;

and second, that the defendant had failed

to submit any evidence on which the jury

could properly apportion the plaintiff's

damages, if any.

Upon reviewing the record in this

case in light of several Kansas cases de-

fining "poisoning," the court is persuaded

that its prior view of the evidence was

overly restrictive, and that the jury

should have been instructed to decide whe-

ther any of the Plaintiff's disability

arose from occupational "poisoning" and

was thus within the exclusive purview of

the Kansas Workmen's Compensation Act.

As early as 1886 the Kansas Supreme Court

observed that the word "poison" is "in

common use in our language, [has] a well-

settled meaning which is not local, and

cannot be regarded as technical or pecul-

iar.” In State v. Baldwin, 36 Kan. 1

(1886), the court therefore held that,

so far as the definition of "poison" was

concerned, it was "proper for the court

to aid and enlighten the jury by defining

the words and giving their usual meaning

and acceptation in common language." The

court further approved use of the follow-

ing dictionary definitions of "poison:"

(1) any substance which, when introduced

into the animal organization, is Capable

A-57

of producing morbid, noxious, or deadly

effect upon it; and (2) any substance

which, introduced in small quantities in

the animal economy, seriously disturbs

or destroys the vital functions. It was

further noted that there are "many differ-

ent modes in which poisons operate," and

that included under the heading of "poi-

sons" are "obviously .. . a vast number

of bodies belongong to the mineral, vege-

table, and animal kingdoms, some solid,

others fluid, and other gaseous, and de-

leterious vapors and miasmata impercept-

ible to the sense." 36 Kan. at 20-21. A

Similar approach to the definition of

"poisoning" in a workmen's compensation

context was expressly condoned by the

Kansas Supreme Court in Weimer v. Sauder

Tank Company, 184 Kan. 422, 337 P.2d 672

(1959). Accordingly, the jury in this case

should have been informed of the substance

of the relevant occupational disease

statutes and instructed to determine whe-

ther any part of the plaintiff's disabil-

ity was attributable to "poisoning" for

which K.S.A. §44-5a01 provided the exclu-

Sive remedy.

The principal reason why the court

refused to give the defendant's proffered

instruction was not its concern whether

the plaintiff's disability was arguably

due to "poisoning" under the relevant

statute, but rather its concern that the

defendant had presented absolutely no evi-

dence on which the jury could rationally

apportion the plaintiff's damages, if any,

as to recovery for injury within and in-

jury outside the scope of the Workmen's

Compensation Act. The defendant -- which

relied entierly upon the proposition that

A-59

the plaintiff's disability was 100% non-

occupational in origin -- presented no

evidence from which the jury could find

that among those occupational causes (if

any) of the plaintiff's disability, any

particular percentage of his difficulties

could be attributed to "poisons" within

the scope of the occupational disease

statutes as opposed to other substances

for which statutory compensation was not

available.

In retrospect, the court is of the

opinion that this failure of proof did

not warrant its refusal to instruct the

jury as to the arguable applicability of

the exclusive remedial provisions of the

workmen's compensation statute. The entire

theory of the plaintiff's case at trial

was that the synergistic reaction of

"chemicals + heat + dust" produced the

A-60

pulmonary disability for which relief was

sought. The plaintiff disavowed the sug-

gestion that any single component of this

formula, or any combination of two such

components, artiinced or could have produc-

ed the plaintiff's disability. With refer-

ence to the "chemical" component of his

theory, however, the plaintiff's own evi-

dence established a virtually prima facie

case that (1) his disability was partially

attributable to §44-5a02 chemicals; and

(2) the effect of such chemicals was "poi-

sonous" in nature. In view of this evi-

dence, which made out a prima facie case

that the plaintiff's common law remedy

was completely -- or at best, partially

-- barred by the availability of workmen's

compensation relief, it was incumbent upon

the plaintiff to establish the nonexclusi-

vity of the statutory compensation remedy

A-61

as to each element of the injuries for

which he sought common law relief. The

defendant's requested instruction did not

introduce as an "affirmative defense" the

issue of §5a01(b) [sic] apportionment as

to the "heat" and "dust" elements of the

plaintiff's theory. This issue was inter-

jected into the case by the plaintiff him-

self. The defendant appeared willing, so

far as the "heat" and "dust" facets of

the plaintiff's case were concerned, to

rest upon the court's basic jury instruc-

tions that in order for defendant to be

found liable, the plaintiff must prove

negligence, causation, foreseeability of

injury, etc. Accordingly, the defendant

should not have been required, as a condi-

tion precedent to the giving cf its prof-

fered jury instruction, to introduce evi-

dence purporting to assign a certain per-

A-62

centage of the plaintiff's disability to

causes for which K.S.A. §§44-5a01 and 44-

5a02 aheviied the exclusive remedy.

In deciding to conditionally sustain

the defendant's motion for a new trial,

in the event that the court's order grant-

ing the defendant's motion for judgment

notwithstanding the verdict should be re-

versed upon appeal, the court does not

mean to imply that the particular instruc-

tion proffered by the defendant adequately

addressed all of the points that the court

in retrospect feels should have been

covered. The court merely holds that based

upon the evidence in this case the jury

should have been instructed (1) to deter-

mine to what degree, if any, the plain-

tiff's disability was caused by chemical

"poisoning" within the purview of K.S.A.

§44-5a02(g) or (j); and (2) to determine

A-63

to what degree, if any, the plaintiff's

disability was caused by conditions or

substances beyond the scope of K.S.A.

§§44-5a01 and 44-5a02. The jury should

ce been further instructed, if it found

the plaintiff's disability to have been

caused by both compensable and noncompens-—

able factors, to render an appropriate

apportioned verdict under K.S.A. §44-5a01

(b). As to the latter point, the jury

should have been instructed as to who

bore the burden of proving facts on which

a rational apportioned verdict could be

rendered.

It is perhaps appropriate to comment

in closing upon the fact that in deciding

the defendant's motion for judgment not-

withstanding the verdict, the court did

not rely upon the defendant's argument |

that all recovery whatever was barred by

A-64

the availability of relief under the pro-

visions of the Workmen's Compenation Act.

In the court's view, it was not necessary

to reach this issue, which is ste aaciatenion. ™

a matter of affirmative defense, because

of the total paucity of evidence probative

of the basic elements of the plaintiff's

case. If the court's evaluation of that

evidence is in error and should its con-

clusion be reversed upon appeal, however,

the court would be required to find that

adjudication of the plaintiff's rights

at common law vis-a-vis the exclusive re-

medial provisions of the Kansas Workmen's

Compensation Act is properly a matter of

jury determination under appropriate in-

structions.

IT IS THEREFORE ORDERED that the de-

fendant's motion for judgment notwith-

standing the verdict be and hereby is sus-

A-65

tained, and that the defendant's motion

for new trial be and hereby is condition-

ally granted in the event that the judg-

@ent to be subsequently entered in this

case is hereafter vacated or reversed.

Counsel for the defendant shall prepare,

circulate, and submit for the court's ap-

proval and signature a Journal Entry of

Judgment reflecting the holdings of the

foregoing Memorandum and Order.

Dated this 6th day of November, 1977,

at Kansas City, Kansas.

/S/ EARL E. O'CONNOR

UNITED STATES DISTRICT JUDGE

A-66

Not for Routine Publication

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 78-1082

JAMES L. MURPHY,

Appellant Appeal From

Vs. the United States

District Court For

The District of

OWENS-CORNING FIBER- Kansas

GLAS CORPORATION,

Dec. *2d

Appellee Juiy 13, 1979

Lloyd Burke Bronston and Dan L. Smith,

Overland Park, Kansas, for Appellant.

Leonard O. Thomas, Kansas City, Kansas

(Charles O. Thomas and James R. Callahan,

Kansas City, Kansas, and Weeks, Thomas,

Lysaught, Bingham & Mustain, Chartered,

Kansas City, Kansas, of Counsel, with him

on the Brief), for Appellee.

Before SETH, Chief Judge, HOLLOWAY and

LOGAN, Circuit Judges.

SETH, Chief Judge.

A-67

LNAI POET ORT ry a

Plaintiff brought this diversity

action in Kansas, alleging that he had |

a serious lung condition which was caused

by defendant's failure to provide a safe

place to work at its fiberglass plant

while plaintiff was there employed. The

case was tried to a jury which returned

a verdict for plaintiff. In response to

defendant's motion, the trial court enter-

ed a judgment for defendant n.o.v. The

plaintiff has taken this appeal.

The trial court in its detailed mem-

orandum on the motion for judgment not-

withstanding the verdict states the stand-

ard to be applied in the examination of

the evidence on such a motion. We agree

with the statement, and further are of

the opinion that the trial court properly

applied the standard.

a a Re

A-68

Thus the evidence here must be view-

ed in the light most favorable to the

plaintiff, and all reasonable inferences

are for the plaintiff. Weeks v. Latter-

Day Saints Hospital, 418 F.2d 1035 (10th

Cir.). A scintilla of evidence is not

enough to support plaintiff's position.

McGhee v. Draper, 564 F.2d 902 (10th

Cir.); Yazzie v. Sullivent, 561 F.2d 183

(10th Cir.). If the benefit of inferences

is given to this plaintiff, and the evi-

dence generally viewed in a light favor-

able to him, and still if reasonable men

could not come to a different conclusion,

the ruling must go with such conclusion.

Black, Sivalls & Bryson, Inc. v. Keystone

Steel Fabrication, Inc., 584 F.2d 946

(10th Cir.); Wright v. American Home As-

surance Co., 488 F.2d 361 (10th Cir.);

Taylor v. National Trailer Convoy, Inc.,

A-69

433 F.2d 569 (10th Cir.). We thus apply

these standards in the examination of the

record.

We will not discuss the facts at

length. The trial court's memorandum con-

tains a statement of the basic facts

which we consider to be supported by the

record.

It is apparent that under Kansas

law, the defendant was to provide the

plaintiff a safe place to work. See

Uhlrig v. Shortt, 397 P.2d 321 (Kan.).

The plaintiff alleged that the defendant

wilt negligent in several particulars and

recognized that negligence of the defen-

dant was an essential ingredient of his

cause of action. Allen v. Shell Petroleum

Corp., 68 P.2d 651 (Kan.); Lane v.

Missouri Pacific Ry. Co., 68 Pac. 626

(Kan.). Thus the standard of ordinary

A-70

care as the Kansas court Said in Allen v.

oeealh ig: *, . . To supply appliances,

methods, and places as persons of ordin-

ary intelligence and prudence commonly

furnish in like circumstances." As the

trial court Stated, a standard is the

degree of care exercised by an average

prudent person in similar circumstances,

and further, " .,.. an employer will gen-

erally not be held liable if he conducts

his business in a manner conforming with

the usage of others engaged in the same

business under Similar circumstances,"

citing Uhlrig v. Shortt.

Thus what does the record show as

to negligence? The Plaintiff put on evi-

dence to show the physical arrangement

of the work place. The machinery and the

processes were described as were the win-

dows and ventilation devices. There was

A-71

shown to be heat and dust in the air.

These facts were not related, with but

one exception, to any prevailing standard

or expert opinion as to particulars. No

evidence whatever was introduced by the

plaintiff to show that the defendant's

methods, practices, testing, or ventila-

tion departed in any way from industry

standards, or was contrary to expert opin-

ion. The evidence of defendant was that

this was all in accordance with practices

used by prudent operators.

The "exception" referred to above

was a showing that the dust at one or two

locations in the plant exceeded a certain

figure which was then above an accepted

standard. However, the standard was with-

in a very short time thereafter changed

to accept a very much higher figure than

the test showed. There can be no sigqnifi-

A-72

cance to this testing since it was well

within the standard ultimately adopted.

The plaintiff failed in his proof

to show that there was anything wrong,

within the negligence standard, with the

physical facts and processes he described

by his witnesses. No other method or de-

vices were advance as a proper solution,

and there was no proof as to what others

in the business were doing. This is the

obvious failure in his case. The picture

of conditions in the plant had to be re-

lated to some standard or measure by ex-

pert opinion before a jury could reach

any conclusions as to negligence.

It is obvious that adherence to a

particular industry practice cannot in

itself be taken as proof of due care.

There is such a great variety of situa-

tions and circumstances. See Walker v.

A-73

Colgate-Palmolive-Peet Co., 139 P.2d 157 }

(Kan.). There must however be proof of

facts or clear circumstantial evidence,

taken in proper context, to demonstrate

for the jury that a defendant has depart-

ed from an accepted standard of care, or

expert opinion, if the plaintiff is to

meet his burden. The court in Blackmore

v. Auer, 357 P.2d 765 (Kan.), said in

part:

"To meet the burden of proof on

the issue of negligence the evidence

must be substantial and satisfy the

obligation . . . to prove such negli-

gence by a preponderance of the evi-

dence."

Taking all the inferences, and the

best view of the facts for plaintiff, the

failure of plaintiff to come forward with

facts to demonstrate that the circum-

stances shown to exist met plaintiff's

burden under Kansas case law is apparent.

The trial court in its memorandun,

from which we have borrowed liberally,

A-74

PPR a

considers separately each allegation of

negligence and relates it to the proof.

Thus it considers the allegation of fail-

ure to test the air quality and to deter-

mine the effects on the employees, the

failure to warn employees that the air

was harmful, the failure to remove dust

and particles, the failure to warn plain-

tiff of his deteriorating health. We will

not repeat the analysis of each allega-

tion as made by the district court. An

examination of the record supports the

view of the trial court as to each point,

and it conforms $6 standards for judgment

n.oO.v. The record thus shows that the

testing of air quality was extensive and

over an extended period, reliance was

properly placed on evaluations of the dan-

gers of certain pollutants, and on the

opinions of experts that fiberglass par-

ticles in the numbers shown to be in the

air could pose no danger. There was no

proof otherwise, and again no expert opin-

ion or practice to demonstrate anything

wie ee: In short there was no proof

or inference that anything else should

have been done or more done upon which

the jury could conclude that the defend-

ant was negligent as to any of the par-

ticulars recited above. We have again a

description of the facts and circum-

stances, but no proof or inference that

what was being done was insufficient or

done improperly. There was no evidence

or inference that other or more frequent

testing would have led to any different

results.

In an application of the judgment

n.o.v. standard, there was no evidence

from which the jury could reach any other

A-76

conclusion than plaintiff's lung condi-

tion had no connection with his employ-

ment. Dr. Evans appeared as a witness for

plaintiff as to his medical condition.’

The doctor agreed with the several arti-

cles written by recognized experts relat-

ing to studies of the health and lung con-

ditions of fiberglass workers. These

Studies showed in substance that lung con-

ditions of fiberglass workers were no dif-

ferent than other workers. Dr. Evans

agreed with the standards. There were no

facts advance by Dr. Evans nor were there

any facts in the record on which he could

base his opinion as to a causal connec-—

tion. He acknowledged that the air quality

waS within the limits or standards he

recognized as valid. An expert opinion

without any basis in fact, or related to

any fact before the court, is not an ex-

A-77

t opinion and is not evidence fo A

_ ad P ace this element or the whole case by the

ose. The trial c = 3 ludi h

purp sili at SOrs 2 eanery Te addition of this element brings the claim

statements by Dr. Evans said: "Indeed,

23 under the Kansas statutes (K.S.A. § 44-

» >

5a02) relating to workmen's compensation

this might truly be characterized as one

of those rare cases in which 'the evi- ; / ;

relating to poisoning.

denc oints but a d i t-

ee a ee We have considered the severaf other

ible to no reasonable inferences' that _ ‘i

- points raised by plaintiff, but find them

would sustain the plaintiff's burden of :

to be without merit. Thus we must con-

roof on the issue of causation." The med-

. clude that the entry of the judgment not-

ical witnesses of defendant testified :

withstanding the verdict was proper, and

there was no connection between plain-

it is affirmed.

tiff's condition and his employment. This

was the only evidence on the issue.

No. 78-1082

There would seem to be no purpose

MURPHY v. OWENS-CORNING FIBERGLAS

in discussing the matter of ammonia and ;

CORPORATION

other vapors in the area where plaintiff . : ;

HOLLOWAY, Circuit Judge, dissenting:

worked. This point is argued on appeal,

August 17, 1979

but there is no record support other than :

I respectfully dissent.

the most general reference. In any event,

Under the standards we must apply

the argument leads to the conclusion that : he 3

in deciding whether a party should be de-

A-78

-prived of a jury verdict in his favor,

I mist disagree with the majority. To sus-

tain the judgment n.o.v. considerable re-

liance is placed on evidence of compli-

ance'by the defendant with some industry

standards. However, the Kansas Supreme

Court has held in connection with the em-

ployer's duty to provide a safe place to

work that the duty is an absolute obliga-

tion, not to be delegated to those in his

employ; that while customary methods may

be considered in determining whether the

duty has been properly performed, "they

do not-constitute a controlling test, and

it should be left to the jury to deter-

mine whether, under the circumstances of

the case, the provisions made by the em-

ployer were such as a person of ordinary

prudence would have made for the safety

of his workmen." Walker v. Colgate-

Palmolive-Peet Co., 139 P.2d La?, i753

(Kan.), quoting James Baird Co. vy. Boyd,

41 F.2d 578, 582-83 (4th CAP. }»

There is ample evidence to sustain

a verdict against the defendant under

this standard, in my Opinion. The evi-

dence showed heat in areas where the

plaintiff worked at some 120 to 140 de-

grees and the presence of varyng levels

of fiberglas Particles, ammonia, carbon

monoxide and formaldehyde and complaints

by the plaintiff about the conditions.

While the concentrations of individual

Substances were below some recognized dan-

ger levels, the jury was entitled to take

into account the combined effect of the

conditions on the plaintiff's lungs and

their capacity to tolerate fiberglas par-

ticles. It was this Synergistic effect

which the plaintiff's doctor testified

about, as noted below. To me the proof

A-81

of the conditions and of the defendant's

knowledge of them was sufficient to sus-

tain the jury's verdict.? We have held

that a judgment n.O.v. cannot be granted

unless the evidence, viewed in the light

most favorable to the plaintiff, together

with inferences which may fairly be drawn

therefrom, points all one way and is sus-

ceptible of no reasonable inferences sus-

taining the plaintiff's position. Moore

v. Shultz, 491 F.2d 294, 298 (10th Cir.).

That strict test was not met here.

It is also argued that the evidence

was defective as to causation or connec-—

As noted above, the plaintiff

testified to the presence of fiberglas

dust and chemical fumes in the air, as

well as the extreme heat in his working

area. While the majority emphasizes that

the defendant complied with industry prac-

tices in testing for substances, and in

ventilation and control of these subs-

tances, there was evidence to indicate

that testing was conducted only in areas

specified by the defendant, and in fact,

the plaintiff's work area was not tested

for all of these substances.

Further evidence showed that loca-

tion and frequency of testing were not

governed by industry standards but by the

individual company, and thus the jury

could reasonably have determined that the

defendant was negligent in not testing

frequently enough and in proper loca-

tions, even if the tests used were accur-

ate tests. Evidence by the plaintiff and

others as to the condition of his work

area and evidence of complaints made to

the defendant by the plaintiff could lead

to the jury's concluding that defendant

was negligent in not testing the plain-

tiff's work area.

There was also evidence to indicate

that what ventilation methods were used

by the defendant, such as overhead win-

dows, were often not used in inclement

weather. From this the jury could con-

clude that chemicals and fiberglas dust

were at higher concentrations on days

when defendant was not using all existing

ventilation.

Finally, some evidence indicated

that certain ventilation devices may have

served to aggravate the problem by stir-

ring up fiberglas particles and by blow-

ing chemical vapors into the plaintiff's

work area. From this the jury could also

infer defendant was negligent in not pro-

viding safe working conditions.

tion of the plaintiff's disability with

his employment. However, his testimony

Showed he was in good health on commenc-

ing work with defendant in 1959 at 28

years of age, and that he worked in de-

fendant's plant until he became disabled

in 1970. His own treating physician test-

ified on the basis of plaintiff's medical

history and tests made during two weeks

of hospitalization of plaintiff in late

1970, and from reports and recommenda-

tions on conditions in defendant's plant.

From all the circumstances this physician

testified that the plaintiff had chronic

obstructive pulmonary disease, that he

had no doubt this was due to the heat and

the amount of materials plaintiff had in-

haled, that the mechanism of the body try-

ing to overcome these things was "over-

whelmed," and that in his medical opinion,

ee ee

the plaintiff was "completely and totally

disabled by this employment." (4 R. 249-

50). The doctor had earlier stated his

opinion that the plaintiff was permanent-

ly and totally disabled. (Id. at 226).

He explained in detail how the heat and

its drying effect and the inhalation of

other materials impaired the functioning

of the cilia Ae the ability to dispose

of other foreign matter, such as fiber-

glas (Id. at 236-39, 244-47).?

The majority opinion, p.6, refers

to the trial court's "excluding" the

statements of Dr. Evans. I assume this

is said in the sense that in his post-

trial memorandum, 447 F.Supp. at 569, the

trial judge said that the doctor's con-

clusion "is entitled to no credence and

weight whatever." I find no statement in

the record where the testimony of Dr.

Evans on causation or any other substan-

tial part of his testimony was excluded

or stricken.

We should take into account all this

testimony from the treating physician and

from the plaintiff himself. As the Kansas

Court has done, we should consider "lay

testimony of the conditions under which

the plaintiff worked; of lack of proper

ventilation; of long time use of fiber-

glass which permeated the atmosphere..."

Miller v. Beech Aircraft Corporation, 460

P.2d 535, 538 (Kan.). From such evidence,

"both lay and expert, the jury might rea-

sonably have drawn the inference that

plaintiff's disability was job-connected."

(Id. at 538).

It is true that there was consider-

able impeachment of the doctor's testi-

mony and opposing evidence. The trial

court's memorandum opinion states plaus-

ible reasons for reaching a contrary re-.

sult. Nevertheless, the jury was entitl-

A-86

ed to accept the testimony of the plain-

tiff and the doctor who treated him and

to draw its conclusions from their evi-

dence, rejecting the testimony of the de-

fendant's experts. Thus I cannot agree

that judgment notwithstanding the jury's

verdict should have been entered.

JAMES L. MURPHY,

Plaintiff-Appellant,

No. 78-1082

Vs. September Term -

October 5, 1979

OWENS-CORNING FIBERGLAS

CORPORATION,

Defendant-Appellee.

This matter comes on for considera-

tion of the petition for rehearing with

suggestion for rehearing en banc filed

by appellant.

Upon consideration whereof, the peti-

tion for rehearing is denied by Chief

Judge Seth and Circuit Judge Logan. Cir-

cuit Judge Holloway voted to grant rehear-

ing.

The petition for rehearing having

been denied by the panel to whom the case

was argued and submitted, and no member

of the panel nor judge in regular active

service on the Court having requested that

the Court be polled on rehearing en banc,

A-88

Rule 35, Federal Rules of Appellate Pro-

cedure, the suggestion for rehearing en

banc is denied.

HOWARD K. PHILLIPS, Clerk

By Robert L. Hoecker

Chief Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.